Exhibit 4.1


 


EXECUTION VERSION


 


 


COMTECH TELECOMMUNICATIONS CORP.


 


and


 


The Bank of New York Mellon, as Trustee


 


 






 


INDENTURE


 


Dated as of May 8, 2009


 






 


 


3% Convertible Senior Notes due 2029


 

















 


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.

  	
   

  	
  Trust Indenture Act Provisions

  	
  8

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 1.04.

  	
   

  	
  Rules Of Construction

  	
  8

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 2

  
	
   

  
	
  THE SECURITIES

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 2.01.

  	
   

  	
  Form and Dating

  	
  9

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 2.02.

  	
   

  	
  Execution and Authentication

  	
  11

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 2.03.

  	
   

  	
  Registrar, Paying Agent and
  Conversion Agent

  	
  11

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 2.04.

  	
   

  	
  Paying Agent To Hold Money In Trust

  	
  12

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 2.05.

  	
   

  	
  Conversion Agent To Hold Money In
  Trust

  	
  13

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 2.06.

  	
   

  	
  Lists of Holders of Securities

  	
  13

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 2.07.

  	
   

  	
  Transfer and Exchange

  	
  14

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 2.08.

  	
   

  	
  Replacement Securities

  	
  15

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 2.09.

  	
   

  	
  Outstanding Securities

  	
  15

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 2.10.

  	
   

  	
  Treasury Securities

  	
  16

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 2.11.

  	
   

  	
  Temporary Securities

  	
  16

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 2.12.

  	
   

  	
  Cancellation

  	
  16

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 2.13.

  	
   

  	
  Restrictive Legend; Additional
  Transfer and Exchange Requirements

  	
  17

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 2.14.

  	
   

  	
  CUSIP Numbers

  	
  21

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 2.15.

  	
   

  	
  Calculations

  	
  21

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 2.16.

  	
   

  	
  Payment of Interest; Interest
  Rights Preserved

  	
  22

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 2.17.

  	
   

  	
  Computation of Interest

  	
  23

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 2.18.

  	
   

  	
  Automatic Exchange from Restricted
  Global Security to Unrestricted Global Security

  	
  23

  



 


i

















 


	
  ARTICLE 3

  
	
   

  
	
  REDEMPTION AND REPURCHASE

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 3.01.

  	
   

  	
  Company’s Right to Redeem; Notice
  to Trustee

  	
  24

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 3.02.

  	
   

  	
  Selection of Securities to be
  Redeemed

  	
  24

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 3.03.

  	
   

  	
  Notice of Redemption

  	
  25

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 3.04.

  	
   

  	
  Effect of Notice of Redemption

  	
  26

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 3.05.

  	
   

  	
  Deposit of Redemption Price

  	
  26

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 3.06.

  	
   

  	
  Securities Redeemed in Part

  	
  26

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 3.07.

  	
   

  	
  Repurchase of Securities by the
  Company at Option of the Holder

  	
  27

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 3.08.

  	
   

  	
  Repurchase of Securities at Option
  of the Holder upon a Fundamental Change

  	
  29

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 3.09.

  	
   

  	
  Effect of Repurchase Notice or
  Fundamental Change Purchase Notice

  	
  32

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 3.10.

  	
   

  	
  Deposit of Repurchase Price or
  Fundamental Change Purchase Price

  	
  33

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 3.11.

  	
   

  	
  Securities Purchased in Part

  	
  34

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 3.12.

  	
   

  	
  Repayment to the Company

  	
  34

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 3.13.

  	
   

  	
  Compliance With Securities Laws
  Upon Purchase of Securities

  	
  34

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 3.14.

  	
   

  	
  Purchase of Securities In Open
  Market

  	
  35

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 4

  
	
   

  
	
  CONVERSION

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 4.01.

  	
   

  	
  Right to Convert

  	
  35

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 4.02.

  	
   

  	
  Conversion Procedures

  	
  35

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 4.03.

  	
   

  	
  Payments Upon Conversion

  	
  36

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 4.04.

  	
   

  	
  Adjustment of Conversion Rate

  	
  37

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 4.05.

  	
   

  	
  Certain Other Adjustments

  	
  45

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 4.06.

  	
   

  	
  Adjustments Upon Certain
  Fundamental Changes

  	
  45

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 4.07.

  	
   

  	
  Effect of Recapitalization,
  Reclassification, Consolidation, Merger or Sale

  	
  47

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 4.08.

  	
   

  	
  Taxes on Shares Issued

  	
  48

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 4.09.

  	
   

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

  	
  48

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 4.10.

  	
   

  	
  Responsibility of Trustee

  	
  49

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 4.11.

  	
   

  	
  Notice to Holders Prior to Certain
  Actions

  	
  49

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 4.12.

  	
   

  	
  Stockholder Rights Plan

  	
  50

  



 


ii

















 


	
  ARTICLE 5

  
	
   

  
	
  COVENANTS

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 5.01.

  	
   

  	
  Payment of Securities

  	
  50

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 5.02.

  	
   

  	
  Reports by Company

  	
  51

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 5.03.

  	
   

  	
  Compliance Certificates

  	
  52

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 5.04.

  	
   

  	
  Further Instruments and Acts

  	
  52

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 5.05.

  	
   

  	
  Maintenance of Corporate Existence

  	
  52

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 5.06.

  	
   

  	
  Rule 144A Information
  Requirement

  	
  52

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 5.07.

  	
   

  	
  Stay, Extension And Usury Laws

  	
  53

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 5.08.

  	
   

  	
  Payment of Additional Interest

  	
  53

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 5.09.

  	
   

  	
  Maintenance of Office or Agency

  	
  53

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 6

  
	
   

  
	
  CONSOLIDATION; MERGER; SALE OF ASSETS

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 6.01.

  	
   

  	
  Company May Consolidate, Etc.,
  Only on Certain Terms

  	
  54

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 6.02.

  	
   

  	
  Successor Substituted

  	
  54

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 7

  
	
   

  
	
  DEFAULT AND REMEDIES

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 7.01.

  	
   

  	
  Events of Default

  	
  55

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 7.02.

  	
   

  	
  Acceleration; Special Interest

  	
  57

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 7.03.

  	
   

  	
  Collection of Indebtedness and
  Suits for Enforcement by Trustee

  	
  59

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 7.04.

  	
   

  	
  Trustee May File Proofs of
  Claim

  	
  59

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 7.05.

  	
   

  	
  Trustee May Enforce Claims
  Without Possession of Securities

  	
  60

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 7.06.

  	
   

  	
  Application of Money Collected

  	
  60

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 7.07.

  	
   

  	
  Limitation on Suits

  	
  61

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 7.08.

  	
   

  	
  Unconditional Right of Holders to
  Receive Payment and to Convert

  	
  61

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 7.09.

  	
   

  	
  Restoration of Rights and Remedies

  	
  62

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 7.10.

  	
   

  	
  Rights and Remedies Cumulative

  	
  62

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 7.11.

  	
   

  	
  Delay or Omission Not Waiver

  	
  62

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 7.12.

  	
   

  	
  Control by Holders

  	
  62

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 7.13.

  	
   

  	
  Waiver of Past Defaults

  	
  62

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 7.14.

  	
   

  	
  Undertaking for Costs

  	
  63

  



 


iii

















 


	
  Section 7.15.

  	
   

  	
  Remedies Subject to Applicable Law

  	
  63

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 7.16.

  	
   

  	
  Additional Interest

  	
  63

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 8

  
	
   

  
	
  TRUSTEE

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 8.01.

  	
   

  	
  Duties of Trustee

  	
  64

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 8.02.

  	
   

  	
  Notice of Default

  	
  66

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 8.03.

  	
   

  	
  Certain Rights of Trustee

  	
  66

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 8.04.

  	
   

  	
  Trustee Not Responsible for
  Recitals, Dispositions of Securities or Application of Proceeds Thereof

  	
  68

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 8.05.

  	
   

  	
  Trustee and Agents May Hold
  Securities; Collections; etc.

  	
  68

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 8.06.

  	
   

  	
  Money Held in Trust

  	
  68

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 8.07.

  	
   

  	
  Compensation and Indemnification of
  Trustee and Its Prior Claim

  	
  68

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 8.08.

  	
   

  	
  Conflicting Interests

  	
  69

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 8.09.

  	
   

  	
  Trustee Eligibility

  	
  69

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 8.10.

  	
   

  	
  Resignation and Removal;
  Appointment of Successor Trustee

  	
  70

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 8.11.

  	
   

  	
  Acceptance of Appointment by
  Successor

  	
  71

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 8.12.

  	
   

  	
  Merger, Conversion, Consolidation
  or Succession to Business

  	
  72

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 8.13.

  	
   

  	
  Preferential Collection of Claims
  Against Company

  	
  72

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 8.14.

  	
   

  	
  Reports By Trustee

  	
  72

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 9

  
	
   

  
	
  SATISFACTION AND DISCHARGE OF INDENTURE

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 9.01.

  	
   

  	
  Satisfaction and Discharge of
  Indenture

  	
  73

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 9.02.

  	
   

  	
  Application of Trust Money

  	
  74

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 9.03.

  	
   

  	
  Reinstatement

  	
  74

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 10

  
	
   

  
	
  AMENDMENTS; SUPPLEMENTS AND WAIVERS

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 10.01.

  	
   

  	
  Without Consent of Holders

  	
  74

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 10.02.

  	
   

  	
  With Consent of Holders

  	
  75

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 10.03.

  	
   

  	
  Execution of Supplemental
  Indentures and Agreements

  	
  76

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 10.04.

  	
   

  	
  Effect of Supplemental Indentures

  	
  77

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 10.05.

  	
   

  	
  Conformity with Trust Indenture Act

  	
  77

  



 


iv

















 


	
  Section 10.06.

  	
   

  	
  Reference in Securities to
  Supplemental Indentures

  	
  77

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 10.07.

  	
   

  	
  Notice of Supplemental Indentures

  	
  77

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 11

  
	
   

  
	
  [Reserved]

  
	
   

  
	
  ARTICLE 12

  
	
   

  
	
  MISCELLANEOUS

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 12.01.

  	
   

  	
  Conflict with Trust Indenture Act

  	
  78

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 12.02.

  	
   

  	
  Notices

  	
  78

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 12.03.

  	
   

  	
  Disclosure of Names and Addresses
  of Holders

  	
  79

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 12.04.

  	
   

  	
  Compliance Certificates and
  Opinions

  	
  80

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 12.05.

  	
   

  	
  Acts of Holders

  	
  80

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 12.06.

  	
   

  	
  Benefits of Indenture

  	
  81

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 12.07.

  	
   

  	
  Legal Holidays

  	
  81

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 12.08.

  	
   

  	
  Governing Law; Waiver of Trial by
  Jury

  	
  82

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 12.09.

  	
   

  	
  No Adverse Interpretation of Other
  Agreements

  	
  82

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 12.10.

  	
   

  	
  No Personal Liability of Directors,
  Officers, Employees and Stockholders

  	
  82

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 12.11.

  	
   

  	
  Successors and Assigns

  	
  82

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 12.12.

  	
   

  	
  Multiple Counterparts

  	
  82

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 12.13.

  	
   

  	
  Separability Clause

  	
  82

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 12.14.

  	
   

  	
  Schedules and Exhibits

  	
  83

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 12.15.

  	
   

  	
  Effect of Headings and Table of
  Contents

  	
  83

  
	
   

  	
   

  	
   

  	
   

  
	
  EXHIBIT A Form of Security

  	
  A-1

  
	
   

  	
   

  	
  -

  	
  Assignment
  Form

  	
   

  
	
   

  	
   

  	
  -

  	
  Form of
  Conversion Notice

  	
   

  
	
   

  	
   

  	
  -

  	
  Form of
  Notice of Redemption

  	
   

  
	
   

  	
   

  	
  -

  	
  Form of
  Notice of Repurchase

  	
   

  
	
   

  	
   

  	
  -

  	
  Form of
  [Repurchase][Fundamental Change Purchase] Notice

  	
   

  
	
   

  	
   

  	
  -

  	
  Form of
  Certificate to be Delivered upon Exchange or Registration of Transfer of
  Restricted Securities

  	
   

  
							



 


v

















 


CROSS-REFERENCE TABLE*


 


	
  TIA

  Section

  	
   

  	
   

  	
   

  	
  Indenture

  Section(s)

  	
   

  
	
  Section

  	
   

  	
  310(a)(1)

  	
   

  	
  8.09

  	
   

  
	
   

  	
   

  	
  (a)(2)

  	
   

  	
  8.09

  	
   

  
	
   

  	
   

  	
  (a)(3)

  	
   

  	
  N.A. **

  	
   

  
	
   

  	
   

  	
  (a)(4)

  	
   

  	
  N.A.

  	
   

  
	
   

  	
   

  	
  (a)(5)

  	
   

  	
  8.09

  	
   

  
	
   

  	
   

  	
  (b)

  	
   

  	
  8.08

  	
   

  
	
   

  	
   

  	
  (c)

  	
   

  	
  N.A.

  	
   

  
	
  Section

  	
   

  	
  311(a)

  	
   

  	
  8.13

  	
   

  
	
   

  	
   

  	
  (b)

  	
   

  	
  8.05

  	
   

  
	
   

  	
   

  	
  (c)

  	
   

  	
  N.A.

  	
   

  
	
  Section

  	
   

  	
  312(a)

  	
   

  	
  2.06

  	
   

  
	
   

  	
   

  	
  (b)

  	
   

  	
  12.03

  	
   

  
	
   

  	
   

  	
  (c)

  	
   

  	
  12.03

  	
   

  
	
  Section

  	
   

  	
  313(a)

  	
   

  	
  8.14 (a)

  	
   

  
	
   

  	
   

  	
  (b)(1)

  	
   

  	
  N.A.

  	
   

  
	
   

  	
   

  	
  (b)(2)

  	
   

  	
  8.14 (a)

  	
   

  
	
   

  	
   

  	
  (c)

  	
   

  	
  8.14 (a)

  	
   

  
	
   

  	
   

  	
  (d)

  	
   

  	
  8.14 (b)

  	
   

  
	
  Section

  	
   

  	
  314(a)

  	
   

  	
  5.02

  	
   

  
	
   

  	
   

  	
  (b)

  	
   

  	
  N.A.

  	
   

  
	
   

  	
   

  	
  (c)(1)

  	
   

  	
  12.04

  	
   

  
	
   

  	
   

  	
  (c)(2)

  	
   

  	
  12.04

  	
   

  
	
   

  	
   

  	
  (c)(3)

  	
   

  	
  N.A.

  	
   

  
	
   

  	
   

  	
  (d)

  	
   

  	
  N.A.

  	
   

  
	
   

  	
   

  	
  (e)

  	
   

  	
  12.04

  	
   

  
	
   

  	
   

  	
  (f)

  	
   

  	
  N.A.

  	
   

  
	
  Section

  	
   

  	
  315(a)

  	
   

  	
  8.01 (b)

  	
   

  
	
   

  	
   

  	
  (b)

  	
   

  	
  8.02

  	
   

  
	
   

  	
   

  	
  (c)

  	
   

  	
  8.01 (a)

  	
   

  
	
   

  	
   

  	
  (d)

  	
   

  	
  8.01 (c)

  	
   

  
	
   

  	
   

  	
  (d)(2)

  	
   

  	
  8.01 (c)

  	
   

  
	
   

  	
   

  	
  (d)(3)

  	
   

  	
  8.01 (c)

  	
   

  
	
   

  	
   

  	
  (e)

  	
   

  	
  7.14

  	
   

  
	
  Section

  	
   

  	
  316(a) (last
  sentence)

  	
   

  	
  2.10

  	
   

  
	
   

  	
   

  	
  (a)(1)

  	
   

  	
  7.12, 7.13

  	
   

  
	
   

  	
   

  	
  (a)(2)

  	
   

  	
  N.A.

  	
   

  
	
   

  	
   

  	
  (b)

  	
   

  	
  7.08

  	
   

  
	
   

  	
   

  	
  (c)

  	
   

  	
  12.05(e)

  	
   

  
	
  Section

  	
   

  	
  317(a)

  	
   

  	
  7.03, 7.04(a)

  	
   

  
	
   

  	
   

  	
  (b)

  	
   

  	
  2.04

  	
   

  
	
  Section

  	
   

  	
  318(a)

  	
   

  	
  12.01

  	
   

  
	
   

  	
   

  	
  (b)

  	
   

  	
  N.A.

  	
   

  
	
   

  	
   

  	
  (c)

  	
   

  	
  12.01

  	
   

  



 






*                                            This Cross-Reference Table shall not, for
any purpose, be deemed a part of this Indenture.


**                                     N.A. means Not Applicable.


 


vi
















 


THIS INDENTURE, dated as of May 8,
2009, is between Comtech Telecommunications Corp., a corporation duly organized
under the laws of the State of Delaware (the “Company”), and The Bank of New
York Mellon, a New York banking corporation, as Trustee (the “Trustee”).


 


In consideration of the
purchase of the Securities (as defined herein) by the Holders thereof, the
parties hereto agree as follows for the benefit of one another and for the
equal and ratable benefit of the Holders of the Company’s 3% Convertible Senior
Notes due 2029.


 


ARTICLE 1


 


DEFINITIONS AND INCORPORATION BY REFERENCE


 


Section 1.01.          Definitions.


 


“Additional Interest” means
all amounts, if any, payable pursuant to Section 7.16 hereof.  All references herein to interest accrued or
payable as of any date shall include any Additional Interest accrued or payable
as of such date.


 


“Affiliate” means, with
respect to any specified Person, 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 Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms “controlling” and “controlled” have meanings
correlative to the foregoing.


 


“Agent” means any Registrar,
Paying Agent or Conversion Agent.


 


“Applicable Procedures”
means, with respect to any conversion, transfer or exchange of beneficial
ownership interests in a Global Security, the rules and procedures of the
Depositary, to the extent applicable to such conversion, transfer or exchange.


 


“Bankruptcy Law” means Title
11 of the United States Code entitled “Bankruptcy” or any other law relating to
bankruptcy, insolvency, winding up, liquidation, reorganization or relief of
debtors, whether in effect on the date hereof or hereafter.


 


“Board of Directors” means
the board of directors of the Company or any duly authorized committee of such
board or any equivalent body in a limited partnership, limited liability
company or other entity serving substantially the same function as a board of
directors of a corporation.


 


“Board Resolution” means,
with respect to any Person, a duly adopted resolution (or other similar action)
of the Board of Directors of such Person.


 


“Business Day” means any day
other than a Saturday, a Sunday or any other day on which banks or trust
companies in The City of New York are authorized or required by law, or
executive order to be closed.


 

















 


“Capital Stock” of any
Person means any and all shares, interests, rights to purchase, warrants,
options, participations or other equivalents of or interests in (however
designated) the equity of such Person, but excluding any debt securities
convertible into such equity.


 


“Cash” or “cash” means such
coin or currency of the United States as at any time of payment is legal tender
for the payment of public and private debts.


 


“Certificated Security”
means a Security that is in substantially the form attached as Exhibit A
but that does not include the legend called for by footnote 1 thereof or the
Schedule of Exchanges of Securities thereof.


 


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


 


“Common Equity” of any
Person means Capital Stock of the class or classes pursuant to which the
holders of such Capital Stock have the general voting power under ordinary
circumstances to elect at least a majority of the board of directors, managers
or trustees of such Person (irrespective of whether or not at the time Capital
Stock of any other class or classes shall have or might have voting power by
reason of the happening of any contingency).


 


“Common Stock” means the
common stock of the Company, par value $0.10 per share, or any successor common
stock thereto.


 


“Company” means the party
named as such in the first paragraph of this Indenture until a successor
replaces it pursuant to the applicable provisions of this Indenture, and
thereafter “Company” shall mean such successor Company.


 


“Company Request” or “Company
Order” means a written request or order signed in the name of the Company by
any one of its Chairman of the Board, its Chief Executive Officer, its
President, its Chief Operating Officer, its Chief Financial Officer or a Vice
President (regardless of Vice Presidential designation), and by any one of its
Treasurer, an Assistant Treasurer, any other Vice President (regardless of Vice
Presidential designation), its Secretary or an Assistant Secretary, and delivered
to the Trustee.


 


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


 


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


 


“Conversion
Rate” means, initially, 27.4395 shares of Common Stock per $1,000
principal amount of Securities, subject to adjustment as set forth herein.


 


“Corporate Trust Office”
means the office of the Trustee at which at any particular time its corporate
trust business shall be principally administered, which office at the date
hereof is 


 


2

















 


located
at 101 Barclay Street, Floor 8W, New York, New
York 10286, Attention: Corporate Trust Services, or such other address as the
Trustee may designate from time to time by notice to the Company, or the
principal corporate trust office of any successor Trustee (or such other
address as such successor Trustee may designate from time to time by notice to
the Company).


 


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


 


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


 


“Final Maturity Date” means May 1, 2029.


 


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


 


(1)           a
“person” or “group” within the meaning of Section 13(d) of the
Exchange Act, other than the Company, its Subsidiaries, and its and their
employee benefit plans, has become the direct or indirect “beneficial owner,”
as defined in Rule 13d-3 under the Exchange Act, of the Company’s Common
Equity representing more than 50% of the voting power of the Company’s Common
Equity;


 


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


 


(3)           the
first day on which a majority of the members of the Company’s Board of
Directors does not consist of Continuing Directors;


 


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


 


(5)           the
Common Stock (or other common stock into which the Securities are then
convertible) ceases to be listed or quoted on a national securities exchange in
the United States.


 


Notwithstanding the foregoing, a Fundamental Change as
a result of clause (2) above will not be deemed to have occurred if
100% of the consideration received or to be received by the holders of the
Common Stock, excluding cash payments for fractional shares, in connection with
the transaction or transactions constituting the Fundamental Change consists of
Publicly Traded 


 


3

















 


Securities and as a result of such transaction or
transactions the Securities become convertible into such Publicly Traded
Securities, excluding cash payments for fractional shares.


 


“GAAP” means generally
accepted accounting principles in the United States of America set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board and the Public Company Accounting
Oversight Board or in such other statements by such other entity as have been
approved by a significant segment of the accounting profession, which are in
effect from time to time.


 


“Global Security” means a
Security in global form that is in substantially the form attached as Exhibit A
and that includes the legend called for in footnote 1 thereof and the Schedule
of Exchanges of Securities thereof and which is deposited with the Depositary
or its custodian and registered in the name of the Depositary or its nominee.


 


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


 


“Indenture” means this
instrument as originally executed (including all exhibits and schedules
thereto) and as it may from time to time be supplemented or amended by one or
more indentures supplemental hereto entered into pursuant to the applicable
provisions hereof, including the provisions of the TIA that would be
automatically deemed to be part of this Indenture by operation of the TIA
assuming this Indenture were qualified under the TIA.


 


“Interest Payment Date”
means May 1 and November 1 of each year, commencing November 1,
2009.


 


“Last Reported
Sale Price” of the Common Stock on any date means the closing sale price
per share of Common Stock (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 that date as reported in
composite transactions for the principal U.S. securities exchange on which the
Common Stock is traded. If the Common Stock is not listed for trading on a U.S.
national or regional securities exchange on the relevant date, the “Last Reported Sale Price” shall be the
last quoted bid price for the Common Stock in the over-the-counter market on
the relevant date as reported by Pink Sheets LLC or a similar organization. If
the Common Stock is not so quoted, the “Last
Reported Sale Price” shall be the average of the mid-point of the last
bid and ask prices for the Common Stock on the relevant date from each of at
least three nationally recognized independent investment banking firms selected
by the Company for this purpose.


 


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


 


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


 


4

















 


“Officer’s Certificate”
means a certificate signed by an Officer of the Company and delivered to the
Trustee; provided, however,
that for purposes of Section 5.03, “Officer’s Certificate” means a
certificate signed by the principal executive officer, principal financial
officer, principal operating officer, principal accounting officer or treasurer
of the Company.


 


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


 


“Opinion of Counsel” means a
written opinion of counsel, who may be an employee of or counsel for the
Company and which opinion shall be in form and substance reasonably
satisfactory to the Trustee.


 


“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.


 


“Publicly
Traded Securities” means, in respect of a transaction described in
clause (2) of the definition of Fundamental Change, shares of common
stock traded on the New York Stock Exchange, the NASDAQ Stock Market LLC or the
NASDAQ Global Select Market (or any or their respective successors) or which
will be so traded when issued or exchanged in connection with a Fundamental
Change.


 


“Redemption Date” means the
date specified in a notice of redemption on which the Securities may be
redeemed in accordance with the terms of the Securities and this Indenture.


 


“Registrar” means initially
the Trustee.


 


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


 


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


 


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


 


“Restricted Security” means
a Security required to bear the Restrictive Legend called for in footnote 2 set
forth in the form of Security attached as Exhibit A.


 


“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.


 


5

















 


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


 


“SEC” means the U.S.
Securities and Exchange Commission.


 


“Securities” means up to
$230,000,000 aggregate principal amount of 3% Convertible Senior Notes due
2029, or any $1,000 principal amount thereof (each a “Security”), as amended or
supplemented from time to time, that are issued under this Indenture.


 


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


 


“Securities Custodian” means
the Trustee, as custodian with respect to the Securities in global form, or any
successor thereto.


 


“Significant Subsidiary”
means, with respect to any Person, any Subsidiary (or group of Subsidiaries as
to which a specified condition applies) that would be a “significant subsidiary”
under Rule 1-02(w) of Regulation S-X under the Securities Act.


 


“Special Record Date” for
the payment of any Defaulted Interest means a date fixed by the Trustee
pursuant to Section 2.16.


 


“Stated Maturity” means,
with respect to any installment of interest or principal on any Security, the
date on which such payment of interest or principal shall become due and
payable.


 


“Subsidiary” means, with
respect to any specified Person:  (1) any
corporation, association or other business entity of which more than 50% of the
total voting power of shares of Capital Stock entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers
or trustees of the corporation, association or other business entity is at the
time owned or controlled, directly or indirectly, by that Person or one or more
of the other Subsidiaries of that Person (or a combination thereof); or (2) any
partnership (a) the sole general partner or the managing general partner
of which is such Person or a Subsidiary of such Person or (b) the only
general partners of which are that Person or one or more Subsidiaries of that
Person (or any combination thereof).


 


“TIA” means the Trust
Indenture Act of 1939, as amended, and the rules and regulations thereunder
as in effect on the date of this Indenture, except to the extent that the Trust
Indenture Act or any amendment thereto expressly provides for application of
the Trust Indenture Act as in effect on another date.


 


“Trading Day”
means a day on which (i) trading in the Common Stock generally occurs on
the NASDAQ Stock Market LLC or, if the Common Stock is not then listed on the
NASDAQ Stock Market LLC, on the principal other United States national or
regional securities exchange on which the Common Stock is then listed or, if
the Common Stock is not then listed on a United States national or regional
securities exchange, in the principal other market on which the Common Stock is
then traded, and (ii) a Last Reported Sale Price for the Common Stock is 


 


6

















 


available on such securities exchange or market. If
the Common Stock (or other security for which a closing sale price must be
determined) is not so listed or traded, “Trading Day” means a Business Day.


 


“Trustee” means the party
named as such in the first paragraph of this Indenture until a successor
replaces it in accordance with the provisions of this Indenture, and thereafter
means the successor.


 


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


 


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


 


“Vice President” when used
with respect to the Company or the Trustee, means any vice president, whether
or not designated by a number or a word or words added before or after the
title “vice president.”


 


Section 1.02.          Other Definitions.


 


	
  Term

  	
   

  	
  Defined
  in Section

  
	
   

  	
   

  	
   

  
	
  “Act”

  	
   

  	
  12.05(a)

  
	
  “Additional
  Shares”

  	
   

  	
  4.06(a)

  
	
  “Agent
  Members”

  	
   

  	
  2.01(b)

  
	
  “Clause
  A Distribution”

  	
   

  	
  4.04(c)

  
	
  “Clause
  B Distribution”

  	
   

  	
  4.04(c)

  
	
  “Clause
  C Distribution”

  	
   

  	
  4.04(c)

  
	
  “Company
  Notice”

  	
   

  	
  3.07(a)

  
	
  “Conversion
  Agent”

  	
   

  	
  2.03(a)

  
	
  “Conversion
  Date”

  	
   

  	
  4.02(b)

  
	
  “Conversion
  Notice”

  	
   

  	
  4.02(b)

  
	
  “DTC”

  	
   

  	
  2.01(a)

  
	
  “Defaulted
  Interest”

  	
   

  	
  2.16

  
	
  “Depositary”

  	
   

  	
  2.01(a)

  
	
  “Automatic
  Exchange”

  	
   

  	
  2.18

  
	
  “Automatic
  Exchange Notice”

  	
   

  	
  2.18

  
	
  “Effective
  Date”

  	
   

  	
  4.06(c)

  
	
  “Event
  of Default”

  	
   

  	
  7.01(a)

  
	
  “Fundamental
  Change Company Notice”

  	
   

  	
  3.08(b)

  
	
  “Fundamental
  Change Purchase Date”

  	
   

  	
  3.08(a)

  
	
  “Fundamental
  Change Purchase Notice”

  	
   

  	
  3.08(c)

  
	
  “Fundamental
  Change Purchase Price”

  	
   

  	
  3.08(a)

  
	
  “in
  connection with”

  	
   

  	
  4.06

  



 


7

















 


	
  Term

  	
   

  	
  Defined
  in Section

  
	
   

  	
   

  	
   

  
	
  “Merger
  Event”

  	
   

  	
  4.07(a)

  
	
  “Notice
  of Default”

  	
   

  	
  7.01(b)

  
	
  “Outstanding”

  	
   

  	
  2.09(a)

  
	
  “Paying
  Agent”

  	
   

  	
  2.03(a)

  
	
  “Primary
  Registrar”

  	
   

  	
  2.03(a)

  
	
  “QIB”

  	
   

  	
  2.01(a)

  
	
  “Redemption
  Price”

  	
   

  	
  3.01

  
	
  “Reference
  Property”

  	
   

  	
  4.07(a)

  
	
  “Registrar”

  	
   

  	
  2.03(a)

  
	
  “Repurchase
  Dates”

  	
   

  	
  3.08(a)

  
	
  “Repurchase
  Notice”

  	
   

  	
  3.07(b)

  
	
  “Repurchase
  Price”

  	
   

  	
  3.07(a)

  
	
  “Resale
  Restriction Termination Date”

  	
   

  	
  2.13(d)

  
	
  “Restrictive
  Common Stock”

  	
   

  	
  2.18

  
	
  “Restrictive
  Legend”

  	
   

  	
  2.13(a)

  
	
  “Restricted
  Transfer Default”

  	
   

  	
  7.16(a)

  
	
  “Restrictive
  Transfer Triggering Date”

  	
   

  	
  7.16(a)

  
	
  “Special
  Interest”

  	
   

  	
  7.02(c)

  
	
  “Special
  Payment Date”

  	
   

  	
  2.16(a)

  
	
  “Specified
  Repurchase Date”

  	
   

  	
  3.07(a)

  
	
  “Spin-Off”

  	
   

  	
  4.04(c)

  
	
  “Stock
  Price

  	
   

  	
  4.06(c)

  
	
  “Trigger
  Event”

  	
   

  	
  4.04(c)

  
	
  “Unrestricted
  Common Stock”

  	
   

  	
  2.18

  
	
  “Unrestricted
  Global Security”

  	
   

  	
  2.18

  
	
  “Valuation
  Period”

  	
   

  	
  4.04(c)

  



 


Section 1.03.          Trust Indenture Act Provisions.


 


Whenever this Indenture
refers to a provision of the TIA, that provision is incorporated by reference
in and made a part of this Indenture. 
The following TIA term used in this Indenture has the following meaning:


 


“obligor” on the indenture
securities means the Company or any other obligor on the Securities.


 


All other terms used in this
Indenture that are defined in the TIA, defined by TIA reference to another
statute or defined by any SEC rule and not otherwise defined herein have
the meanings assigned to them therein.


 


Section 1.04.          Rules Of Construction.


 


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


 


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


 


8

















 


(2)  an accounting term
not otherwise defined has the meaning assigned to it in accordance with GAAP;


 


(3)  words in the
singular include the plural, and words in the plural include the singular;


 


(4)  the term “merger”
includes a statutory share exchange and the term “merged” has a correlative
meaning;


 


(5)  the masculine
gender includes the feminine and the neuter;


 


(6)  the terms “include”,
“including”, and similar terms should be construed as if followed by the phrase
“without limitation”;


 


(7)  references to
agreements and other instruments include subsequent amendments thereto; and


 


(8)  all “Article”, “Exhibit”
and “Section” references are to Articles, Exhibits and Sections, respectively,
of or to this Indenture unless otherwise specified herein, and the terms “hereunder,”
“herein,” “hereof” and other words of similar import refer to this Indenture as
a whole and not to any particular Article, Section or other subdivision.


 


ARTICLE 2


 


THE SECURITIES


 


Section 2.01.          Form and Dating.


 


The Securities and the
Trustee’s certificate of authentication shall be substantially in the
respective forms set forth in Exhibit A, which Exhibit is
incorporated in and made part of this Indenture.  The Securities may include such letters,
numbers or other marks of identification and such notations, legends,
endorsements or changes as the Officer executing the same may approve
(execution thereof to be conclusive evidence of such approval) and as are not
inconsistent with the provisions of this Indenture, or as may be required by
the Trustee, the Depositary, or as may be required to comply with any applicable
law or with any rule or regulation made pursuant thereto or with any rule or
regulation of any national securities exchange or automated quotation system on
which the Securities may be listed or quoted, or to conform to usage, or to
indicate any special limitations or restrictions to which any particular
Securities are subject.  Each Security
shall be dated the date of its authentication.


 


(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 


 


9

















 


participants in the Depositary, duly executed
by the Company and authenticated by the Trustee as hereinafter provided.  The aggregate principal amount of the
Restricted Global Securities may from time to time be increased or decreased by
adjustments made on the records of the Securities Custodian as hereinafter
provided, subject in each case to compliance with the Applicable Procedures.


 


(b)           Global Securities In General.  The 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, purchases or
conversions of such Securities.


 


Members of, or participants
in, the Depositary (“Agent Members”) shall have no rights under this
Indenture with respect to any Global Security held on their behalf by the
Depositary or under the Global Security, and the Depositary (including, for
this purpose, its nominee) 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 (1) 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 (2) impair,
as between the Depositary and its Agent Members, the operation of customary
practices governing the exercise of the rights of a Holder of any Security.


 


(c)           Book Entry Provisions.  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 (1) shall be registered in
the name of the Depositary or its nominee, (2) shall be delivered by the
Trustee to the Depositary or pursuant to the Depositary’s instructions and (3) shall
bear legends substantially to the following effect:


 


“UNLESS THIS CERTIFICATE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO
THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF 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. 
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF.  THIS SECURITY IS
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE AND, UNLESS AND UNTIL IT IS 


 


10

















 


EXCHANGED
IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT
BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.”


 


Section 2.02.          Execution and Authentication.


 


(a)           The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is limited to $230,000,000
aggregate principal amount, except as provided in Sections 2.07 and 2.08.


 


(b)           The Securities shall be executed on behalf of the Company
by one of its Officers.  The signatures
of any of the Officers on the Securities may be manual or facsimile.


 


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


 


(d)           No Security endorsed thereon 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 signatory, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder and is entitled to the benefits of this
Indenture.


 


(e)           The Trustee shall authenticate and make available for
delivery Securities for original issue in the aggregate principal amount of up
to $230,000,000 upon receipt of a Company Order.  The Company Order shall specify the amount of
Securities to be authenticated, shall provide that all such Securities will be
represented by a Global Security and shall state the date on which each
original issue of Securities is to be authenticated.


 


(f)            The Trustee shall act as the initial authenticating agent.  Thereafter, the Trustee may appoint an
authenticating agent acceptable to the Company to authenticate Securities.  An authenticating agent may authenticate
Securities whenever the Trustee may do so. 
Each reference in this Indenture to authentication by the Trustee
includes authentication by such agent. 
An authenticating agent shall have the same rights as an Agent to deal
with the Company or an Affiliate of the Company.


 


(g)           The Securities shall be issuable only in registered form
without coupons and only in denominations of $1,000 principal amount and
multiples of $1,000 thereof.


 


Section 2.03.          Registrar, Paying Agent and
Conversion Agent.


 


(a)           The Company shall maintain one or more offices or agencies
where Securities may be presented for registration of transfer or for exchange
(each, a “Registrar”), one or more 


 


11

















 


offices or agencies where Securities may be
presented or surrendered for payment (each, a “Paying Agent”), one or
more offices or agencies where Securities may be presented for conversion
(each, a “Conversion Agent”) and one or more offices or agencies where
notices and demands to or upon the Company in respect of the Securities and
this Indenture may be served.  The
Company will at all times maintain a Paying Agent, Conversion Agent, Registrar
and an office or agency where notices and demands to or upon the Company in
respect of the Securities and this Indenture may be served in the Borough of
Manhattan, The City of New York.  One of
the Registrars (the “Primary Registrar”) shall keep a register of the
Securities and of their transfer and exchange. 
At the option of the Company, any payment of cash may be made by check
mailed to the Holders at their addresses set forth in the register of Holders.


 


(b)           The Company shall enter into an appropriate agency
agreement with any Agent not a party to this Indenture, provided
that the Agent may be an Affiliate of 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, and any
change in the name or address, of any Agent not a party to this Indenture.  If the Company fails to maintain a Registrar,
Paying Agent, Conversion Agent, or agent for service of notices and demands in
any place required by this Indenture, or fails to give the foregoing notice,
the Trustee shall act as such.  The
Company or any Affiliate of the Company may act as Paying Agent (except for the
purposes of Article 9).


 


(c)           The Company hereby initially designates The Bank of New
York Mellon as Paying Agent, Registrar, Primary Registrar, Securities Custodian
and Conversion Agent, and designates the Corporate Trust Office of the Trustee
as the office or agency of the Company for each of the aforesaid purposes and
as the office or agency where notices and demands to or upon the Company in
respect of the Securities and this Indenture may be served.


 


Section 2.04.          Paying Agent To Hold Money In Trust.


 


Unless otherwise specified
herein, prior to 10:00 a.m., New York City time, on each due date of the
payment of principal of, or interest (including Additional Interest and Special
Interest), if any, on any Securities, the Company shall deposit a sum
sufficient to pay such principal or interest (including Additional Interest and
Special Interest), if any, so becoming due. 
A Paying Agent shall hold in trust for the benefit of Holders of
Securities or the Trustee all money held by the Paying Agent for the payment of
principal of, or interest (including Additional Interest and Special Interest),
if any, on, the Securities, and shall notify the Trustee of any failure by the
Company (or any other obligor on the Securities) to make any such payment.  If the Company or an Affiliate of the Company
acts as Paying Agent, it shall, before 10:00 a.m., New York City time, on
each due date of the principal of, or interest (including Additional Interest
and Special Interest), if any, on, any Securities, segregate the money and hold
it as a separate trust fund for the benefit of Holders.  The Company at any time may require a Paying
Agent to pay all money held by it to the Trustee, and the Trustee may at any
time during the continuance of any Default, upon written request to a Paying
Agent, require such Paying Agent to pay forthwith to the Trustee all sums so
held in trust by such Paying Agent.  Upon
doing so, the Paying Agent (other than the Company) shall have no further
liability for the money so paid to the Trustee.


 


12

















 


Any money deposited with the
Trustee or any Paying Agent, or then held by the Company, in trust for the
payment of the principal of or interest (including Additional Interest and
Special Interest), if any, on any Security and remaining unclaimed for two
years after such principal or interest (including Additional Interest and
Special Interest), if any, has become due and payable shall promptly be paid to
the Company or (if then held by the Company) shall be discharged from such
trust; and the Holder of such Security shall thereafter, as an unsecured
general creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that
the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in a
newspaper published in the English language, customarily published on each
Business Day and of general circulation in The City of New York, notice that
such money remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will promptly be repaid to the Company.


 


Section 2.05.          Conversion Agent To Hold Money In
Trust.


 


The Company shall require
each Conversion Agent (that is not the Trustee) to agree in writing that the
Conversion Agent will hold in trust for the benefit of Holders or the Trustee
all cash and shares of Common Stock delivered by the Company to the Conversion
Agent for the delivery of amounts due upon conversion, and will notify the
Trustee of any default by the Company in making any such delivery.


 


While any such default
continues, the Trustee may require a Conversion Agent to deliver all cash and
shares of Common Stock delivered by the Company to it to the Trustee.  Upon payment over to the Trustee, the Conversion
Agent (if other than the Company or a Subsidiary) shall have no further
liability in respect of such amounts.  If
the Company or a Subsidiary acts as Conversion Agent, it shall segregate and
hold in a separate trust fund for the benefit of the Holders all cash and shares
of Common Stock held by it as Conversion Agent. 
Upon any bankruptcy or reorganization proceedings relating to the
Company, the Trustee shall serve as Conversion Agent for the Securities.


 


Section 2.06.          Lists of Holders of Securities.


 


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 Holders of Securities.  The Company shall furnish or cause the
Registrar to furnish to the Trustee (a) semiannually, not more than 10
days after each Regular Record Date, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders as of such
Regular Record Date; and (b) at such other times as the Trustee may
request in writing, within 30 days after receipt by the Company of any such
request, a list of similar form and content to that in subsection (a) hereof
as of a date not more than 15 days prior to the time such list is furnished; provided, however, that
if and so long as the Trustee shall be the Primary Registrar, no such list need
be furnished.


 


13
















 


Section 2.07.          Transfer and Exchange.


 


(a)           Subject to compliance with any applicable additional
requirements contained in Section 2.13, when a Security is presented to a
Registrar with a request to register a transfer thereof or to exchange such
Security for an equal principal amount of Securities of other authorized
denominations, the Registrar shall register the transfer or make the exchange
as requested if its requirements for such transactions are met; provided, however, that
every Security presented or surrendered for registration of transfer or
exchange shall be duly endorsed or accompanied by an assignment form and, if
applicable, a transfer certificate each substantially in the form included in Exhibit A,
and completed in a manner satisfactory to the Registrar and duly executed by
the Holder thereof or its attorney duly authorized in writing.  To permit registration of transfers and
exchanges, upon surrender of any Security for registration of transfer or
exchange at an office or agency maintained pursuant to Section 2.03(a),
the Company shall execute and the Trustee shall authenticate Securities of a
like aggregate principal amount at the Registrar’s request.  Any exchange or transfer shall be without
charge, except that the Company or the Registrar may require payment of a sum
sufficient to cover any transfer tax or similar governmental charge that may be
imposed in relation thereto; provided that this sentence shall not apply to any
exchange pursuant to Section 2.11, 2.13(a), 4.02(d) or 10.06.


 


(b)           Neither the Company, any Registrar nor the Trustee shall
be required to register the transfer of or exchange any Securities or portions
thereof in respect of which a Repurchase Notice or a Fundamental Change
Purchase Notice has been delivered and not withdrawn by the Holder thereof
(except, in the case of the purchase of a Security in part, the portion thereof
not to be purchased).


 


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


 


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


 


(e)           Each Holder of a Security agrees to indemnify the Company
and the Trustee against any liability that may result from the registration of
transfer, exchange or assignment of such Holder’s Security in violation of any
provision of this Indenture and/or applicable United States federal or state
securities law.


 


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


 


14

















 


Section 2.08.          Replacement Securities.


 


(a)           If (1) any mutilated Security is surrendered to the
Trustee, or (2) 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, in each
case, as may be required by them to save each of them harmless from any loss,
expense, claim or liability, then, in the absence of notice to the Company or
the Trustee that such Security has been acquired by 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 replacement Security of like tenor and
principal amount, bearing a number not contemporaneously outstanding.


 


(b)           If 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, or converted pursuant to Article 4,
the Company in its discretion may, instead of issuing a new Security, pay,
purchase or convert such Security, as the case may be.


 


(c)           Upon the issuance of any new Securities under this Section 2.08,
the Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of counsel and the Trustee) in
connection therewith.


 


(d)           Every new Security issued pursuant to this Section 2.08
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 2.08 are (to the
extent lawful) 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 2.09.          Outstanding Securities.


 


(a)           Securities outstanding (“Outstanding”) at any time
are all Securities authenticated by the Trustee, except for those canceled by
it, those purchased pursuant to Article 3, those converted pursuant to Article 4,
those delivered to the Trustee for cancellation or surrendered for transfer or
exchange and those described in this Section 2.09 as not Outstanding.


 


(b)           If a Security is replaced pursuant to Section 2.08,
such replaced Security ceases to be Outstanding unless the Company receives
proof satisfactory to it that the replaced Security is held by a protected
purchaser.


 


(c)           If a Paying Agent holds in respect of the Outstanding
Securities on a Redemption Date, Specified Repurchase Date, Fundamental Change
Purchase Date or the Final Maturity Date, as the case may be, money sufficient
to pay the principal of and accrued interest (including Additional Interest and
Special Interest), if any, on Securities (or portions thereof) payable on that
date, then on and after such Redemption Date, Specified Repurchase Date,
Fundamental 


 


15

















 


Change Purchase Date, Final Maturity Date,
such Securities (or portions thereof, as the case may be) shall cease to be
Outstanding, interest (including Additional Interest and Special Interest), if
any, on such Securities shall cease to accrue and all other rights of the
Holder will terminate unless otherwise specified in this Indenture.


 


(d)           Subject to the restrictions contained in Section 2.10,
a Security does not cease to be Outstanding because the Company or an Affiliate
of the Company holds the Security.


 


Section 2.10.          Treasury Securities.


 


In determining whether the
Holders of the required principal amount of Securities have concurred in any
request, demand, authorization, notice, direction, waiver or consent,
Securities owned by the Company or any other obligor on the Securities or by
any Affiliate of the Company or of such other obligor shall be disregarded,
except that, for purposes of determining whether the Trustee shall be protected
in relying on any such request, demand, authorization, notice, direction,
waiver or consent, only Securities which a Trust Officer of the Trustee
actually knows are so owned shall be so disregarded.


 


Section 2.11.          Temporary Securities.


 


Until definitive Securities
are ready for delivery, the Company may prepare and execute, and, upon receipt
of a Company Order, the Trustee shall authenticate and deliver, temporary
Securities.  Temporary Securities shall
be substantially in the form of definitive Securities but may have variations
that the Company with the consent of the Trustee considers appropriate for
temporary Securities.  Without unreasonable
delay, the Company shall prepare and the Trustee shall authenticate and deliver
definitive Securities in exchange for temporary Securities representing an
equal principal amount of Securities. 
The temporary Securities will be exchanged for definitive Securities in
accordance with Sections 2.07 and 2.13 hereof.  Until so exchanged, temporary Securities
shall have the same rights under this Indenture as the definitive Securities.


 


Section 2.12.          Cancellation.


 


The Company at any time may
deliver Securities to the Trustee for cancellation.  The Registrar, the Paying Agent and the
Conversion Agent shall forward to the Trustee any Securities surrendered to
them for transfer, exchange, purchase, payment or conversion.  The Trustee and no one else shall cancel, in
accordance with its standard procedures, all Securities surrendered for
transfer, exchange, purchase, payment, conversion or cancellation and shall
dispose of the cancelled Securities in accordance with its customary procedures
or deliver the canceled Securities to the Company upon request.  All Securities which are purchased or
otherwise acquired by the Company or any of its Subsidiaries prior to the Final
Maturity Date pursuant to Article 3 shall be delivered to the Trustee for
cancellation, and the Company may not hold or resell such Securities or issue
any new Securities to replace any such Securities or any Securities that any
Holder has converted pursuant to Article 4.  The Trustee shall maintain a record of all
canceled Securities.  The Trustee shall
provide the Company a list of all Securities that have been canceled from time
to time as requested by the Company in writing.


 


16

















 


Section 2.13.          Restrictive 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
Restrictive Legend called for in footnote 2 set forth on the form of Securities
attached as Exhibit A (collectively, the “Restrictive Legend”), or
if a request is made to remove the Restrictive Legend on a Security, the
Securities so issued shall bear the Restrictive Legend, or the Restrictive
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 if requested by the Company or such Registrar, as may be
reasonably required by the Company and the Registrar, that neither the
Restrictive 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 under the Securities Act
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 under the Securities Act at the time
of such sale, the Trustee, at the written direction of the Company, shall
authenticate and deliver a Security that does not bear the Restrictive
Legend.  If the Restrictive Legend is
removed from the face of a Security and the Security is subsequently held by an
Affiliate of the Company, the Restrictive Legend shall be reinstated.


 


(b)           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 the foregoing 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.  Notwithstanding any other
provisions of this Indenture or the Securities, transfers of a Global Security,
in whole or in part, shall be made only in accordance with this Section 2.13.


 


(c)           Subject to Section 2.13(b) and
in compliance with Section 2.13(d), every Security shall be subject to the
restrictions on transfer provided in the Restrictive 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.


 


(d)           The restrictions imposed by the
Restrictive 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 date that is (x) one year after the last
date on which any of the Securities are originally issued or such shorter
period of time as permitted by Rule 144 under the Securities Act (or any
successor provision 


 


17

















 


thereunder) and (y) such
later date, if any, as may be required by applicable law (the “Resale
Restriction Termination Date”).  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 2.13 (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, if requested by the Company or the Registrar,
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 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 2.13(c) and (d), the term “transfer” encompasses any sale,
pledge, transfer, hypothecation or other disposition of any Security.


 


(e)           The provisions below
shall apply only to Global Securities or any Securities issued in exchange for
a Global Security:


 


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


 


(2)           Notwithstanding
any other provisions of this Indenture or the Securities, a Global Security
shall not be exchanged in whole or in part for a Security registered, and no
transfer of a Global Security in whole or in part shall be 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 (A) 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 in either case a successor Depositary is not appointed by the Company
within 60 days after receiving such notice or becoming aware that the
Depositary has ceased to be a “clearing agency” or (B) an Event of Default
has occurred and is continuing with respect to the Securities.  Any Global Security exchanged pursuant to the
preceding sentence shall be so exchanged as directed by the Depositary.  Any Security issued in exchange for a Global
Security or any portion thereof shall be a Global Security; provided, however, 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.


 


(3)           Securities
issued in exchange for a Global Security or any portion thereof that are not
issued as a Global Security shall be issued in definitive, fully registered
form, without interest coupons, shall have a principal amount equal to that of
such Global Security or portion thereof to be so exchanged, shall be registered
in such names and be 


 


18

















 


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 or the 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.


 


(4)           Subject
to clause (6) of this Section 2.13(e), the registered Holder may
grant proxies and otherwise authorize any Person, including Agent Members 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.


 


(5)           In
the event of the occurrence of any of the events specified in clause (2) of
this Section 2.13(e), the Company will promptly make available to the
Trustee a reasonable supply of Certificated Securities in definitive, fully
registered form, without interest coupons.


 


(6)           Neither
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 (i) 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 (ii) 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.


 


(7)           At
such time as all interests in a Global Security have been converted, cancelled
or exchanged for Securities in certificated form, such Global Security shall,
upon receipt thereof, be cancelled by the Trustee in accordance with standing
procedures and instructions existing between the Depositary and the Securities
Custodian, subject to Section 2.12 of this Indenture.  At any time prior to such cancellation, if
any interest in a Global Security is converted, canceled or exchanged for
Securities in certificated form, the principal amount of such Global Security
shall, in accordance with the standing procedures and instructions existing
between the Depositary and the Securities Custodian, be appropriately reduced,
and an endorsement shall be made on such Global Security, by the Trustee or the
Securities Custodian, at the direction of the Trustee, to reflect such
reduction.


 


19

















 


(f)            Until Resale Restriction Termination
Date, 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 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 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:


 


THE COMMON STOCK EVIDENCED HEREBY HAS NOT BEEN
REGISTERED UNDER THE 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 OR OF A BENEFICIAL INTEREST HEREIN, THE
ACQUIRER:


 


(1)                              REPRESENTS THAT
IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A ‘‘QUALIFIED INSTITUTIONAL BUYER’’
(WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT) AND THAT IT
EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, AND


 


(2)                              AGREES FOR THE BENEFIT
OF THE COMPANY THAT IT WILL NOT OFFER, RESELL, PLEDGE OR OTHERWISE TRANSFER ANY
SHARES OF COMMON STOCK EVIDENCED BY THIS SECURITY OR ANY BENEFICIAL INTEREST
HEREIN, PRIOR TO THE DATE THAT IS (X) ONE YEAR AFTER THE LAST DATE ON
WHICH ANY OF THE 3% CONVERTIBLE SENIOR NOTES DUE 2029 OF COMTECH
TELECOMMUNICATIONS CORP (THE “COMPANY”) 
ARE ORIGINALLY ISSUED OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY
RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THEREUNDER, AND (Y) SUCH
LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW, EXCEPT:


 


(A)         TO THE COMPANY OR ANY
SUBSIDIARY THEREOF, OR


 


(B)         PURSUANT TO A REGISTRATION
STATEMENT THAT HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT, OR


 


(C)         TO A QUALIFIED INSTITUTIONAL
BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT (IF AVAILABLE), OR


 


20

















 


(D)                           PURSUANT TO AN
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF
AVAILABLE) OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.


 


PRIOR
TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (2)(D) ABOVE, THE
COMPANY AND THE TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL
OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED
IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE
WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION
IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.


 


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 restrictive
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.


 


Section 2.14.          CUSIP Numbers.


 


The Company in issuing the
Securities may use one or more “CUSIP” numbers (if then generally in use), and,
if so, the Trustee shall use “CUSIP” numbers in a Fundamental Change Purchase
Notice 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 Fundamental
Change Purchase Notice and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such purchase shall
not be affected by any defect in or omission of such numbers.  The Company will notify the Trustee in
writing of any change in the “CUSIP” numbers.


 


Section 2.15.          Calculations.


 


Except as otherwise
specifically stated herein or in the Securities, all calculations to be made in
respect of the Securities shall be the obligation of the Company.  All calculations made by the Company or its
agent as contemplated pursuant to the terms hereof and of the Securities shall
be made in good faith and be final and binding on the Holders absent manifest
error.  The Company shall provide a
schedule of calculations to the Trustee upon the Trustee’s request, and the
Trustee shall be entitled to conclusively rely upon the accuracy of the
calculations by the Company without independent verification.  The Trustee shall forward calculations made
by the Company to any Holder of Securities upon request.


 


21

















 


Section 2.16.          Payment of Interest; Interest
Rights Preserved.


 


Interest (including
Additional Interest and Special Interest), if any, on any Security which is
payable, and is punctually paid or duly provided for, on the Stated Maturity of
such interest (including Additional Interest and Special Interest), if any,
shall be paid to the Person in whose name the Security is registered at the
close of business on the Regular Record Date for such interest payment.


 


Any
interest (including Additional Interest and Special Interest), if any, on any
Security which is payable, but is not punctually paid or duly provided for, on
the Stated Maturity of such interest (including Additional Interest and Special
Interest), if any, and interest on such defaulted interest at the then
applicable interest rate borne by the Securities, to the extent lawful (such
defaulted interest and interest thereon herein collectively called “Defaulted
Interest”), shall forthwith cease to be payable to the Holder on the
Regular Record Date; and such Defaulted Interest may be paid by the Company, at
its election in each case, as provided in Subsection (a) or (b) below:


 


(a)           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 (not less than 20 days after such notice) of the proposed
payment (the “Special Payment Date”), and on the date of payment 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 prior to
the Special Payment Date, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
subsection 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 Special Payment Date and not less than 10 days after the
receipt by the Trustee of the notice of the proposed payment.  The Trustee shall promptly notify the Company
in writing of such Special Record Date. 
Unless the Company issues a press release to the same effect, in the
name and at the expense of the Company, the Trustee shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each Holder at its
address as it appears in the Security Register, not less than 10 days prior to
such Special Record Date or notify in such other manner as the Trustee
determines, including in accordance with any Applicable Procedures.  Notice of the proposed payment of such
Defaulted Interest and the Special Record Date and Special Payment Date
therefor having been so mailed or otherwise conveyed, such Defaulted Interest
shall be paid to the Persons in whose names the Securities are registered on
such Special Record Date and shall no longer be payable pursuant to the
following paragraph (b).


 


(b)           The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any national
securities exchange on which the Securities may be listed, and upon such notice
as may be required by this Indenture not inconsistent with the requirements of
such exchange, if, after written notice given by the 


 


22

















 


Company to the Trustee of the proposed
payment pursuant to this subsection, such payment shall be deemed practicable
by the Trustee.


 


Subject to the foregoing
provisions of this Section 2.16, 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 (including Additional
Interest and Special Interest), if any, accrued and unpaid, and to accrue,
which were carried by such other Security.


 


Section 2.17.          Computation of Interest.


 


Interest (including
Additional Interest and Special Interest) on the Securities shall be computed
on the basis of a 360-day year comprised of twelve 30-day months.


 


Section 2.18.          Automatic
Exchange from Restricted Global Security to Unrestricted Global Security


 


Beneficial interests in a
Restricted Global Security or Common Stock issued upon conversion of Restricted
Securities (“Restricted Common Stock”) shall be automatically exchanged
into beneficial interests in an unrestricted Global Security or stock
certificate representing unrestricted Common Stock, as applicable, that is no
longer subject to the restrictions set out in the Restrictive Legend (the “Unrestricted
Global Security” or “Unrestricted Common Stock”, as applicable),
without any action required by or on behalf of the Holders (the “Automatic
Exchange”).  In order to effect such
exchange, the Company shall at least 15 days but not more than 30 days prior to
the Resale Restriction Termination Date, deliver a notice of Automatic Exchange
(an “Automatic Exchange Notice”) to each Holder at such Holder’s address
appearing in the Security Register or register maintained at the registrar for
Common Stock, as applicable, with a copy to the Trustee or transfer agent for
Common Stock, as applicable.  The
Automatic Exchange Notice shall identify the Securities or Common Stock, as
applicable, subject to the Automatic Exchange and shall state:  (1) the date of the Automatic Exchange; (2) the
section of this Indenture pursuant to which the Automatic Exchange shall occur;
(3) the “CUSIP” number of the Restricted Global Security or Restricted
Common Stock, as applicable, from which such Holders’ beneficial interests
shall be transferred and (4) the “CUSIP” number of the Unrestricted Global
Security or Unrestricted Common Stock, as applicable, into which such holders’
beneficial interests shall be transferred. 
At the Company’s request on no less than 5 days’ prior notice, the
Trustee shall deliver, or, with respect to Common Stock, the Company shall
cause the transfer agent to deliver, in the Company’s name and at its expense,
the Automatic Exchange Notice to each holder at such holder’s address appearing
in the Security Register or register maintained at the registrar for Common
Stock, as applicable; provided, however, that the Company shall have delivered to the
Trustee or transfer agent, as applicable, a Company Order and an Officer’s
Certificate requesting that the Trustee or transfer agent, as applicable, give
the Automatic Exchange Notice (in the name and at the expense of the Company)
and setting forth the information to be stated in the Automatic Exchange Notice
as provided in the preceding sentence. 
As a condition to any such exchange pursuant to this Section 2.18,
the Trustee or transfer agent, as applicable, shall be entitled to receive from
the Company, and rely conclusively without any liability, upon an Officer’s
Certificate and an Opinion of Counsel to the Company, in form and in substance
reasonably satisfactory to the Trustee or transfer agent, as applicable, to the
effect that such transfer of beneficial interests to


 


23
















 


the
Unrestricted Global Security or Unrestricted Common Stock, as applicable, shall
be effected in compliance with the Securities Act.  Upon such exchange of beneficial interests
pursuant to this Section 2.18, (i) with respect to the Securities,
the Security Registrar shall reflect on its books and records the date of such
transfer and a decrease and increase, respectively, in the principal amount of
the applicable Restricted Global Security(s) and the Unrestricted Global
Security, respectively, equal to the principal amount of beneficial interests
transferred or (ii) with respect to Common Stock, the registrar for Common
Stock shall reflect on its books and records the date of such transfer and a
decrease and increase, respectively, in the number of shares of the applicable
Restricted Common Stock and the Unrestricted Common Stock, respectively, equal
to the beneficial interests transferred. 
If an Unrestricted Global Security is not then outstanding at the time
of the Automatic Exchange, the Company shall execute and the Trustee shall
authenticate and deliver an Unrestricted Global Security to the
Depositary.  Following any such transfer
pursuant to this Section 2.18, the relevant Restricted Global Security or
Restricted Common Stock, as applicable, shall be cancelled.


 


ARTICLE 3


 


REDEMPTION AND REPURCHASE


 


Section 3.01.          Company’s Right to Redeem; Notice
to Trustee.


 


Prior to May 5, 2014,
the Securities shall not be redeemable at the Company’s option.  On or after May 5, 2014, the Company, at
its option, may redeem the Securities for cash at any time, in whole or in
part, at a redemption price (the “Redemption Price”) equal to 100% of
the principal amount of the Securities being redeemed, plus any accrued and
unpaid interest (including Additional Interest and Special Interest), if any,
to, but excluding, the Redemption Date; provided that
if the Redemption Date falls after a Regular Record Date and on or prior to the
corresponding Interest Payment Date, the Redemption Price shall be 100% of the
principal amount of the Securities redeemed but shall not include accrued and
unpaid interest(including Additional Interest and Special Interest), if any.
Instead, the Company shall pay such accrued and unpaid interest (including
Additional Interest and Special Interest), if any,  to the Holder of record at the close of
business on the corresponding Regular Record Date.  If the Company elects to redeem Securities
pursuant to this Section 3.01, it shall notify the Trustee in writing of
such election together with the Redemption Date, the Conversion Rate, the
principal amount of Securities to be redeemed and the Redemption Price.


 


The Company shall give the
notice to the Trustee of the Company’s election to redeem Securities pursuant
to this Section 3.01, at least 30 days but not more than 60 days before
the Redemption Date (unless a shorter notice shall be satisfactory to the
Trustee).


 


Section 3.02.          Selection
of Securities to be Redeemed.


 


If the Company decides to
redeem fewer than all of the Securities, unless the procedures of the
Depositary provide otherwise, the Trustee shall select the Securities to be
redeemed by lot, on a pro rata basis or by another method the Trustee considers
fair and appropriate.


 


24

















 


Securities
and portions of Securities that the Trustee selects shall be in principal
amounts of $1,000 or a multiple of $1,000. 
Provisions of this Indenture that apply to Securities called for
redemption also apply to portions of Securities called for redemption.  The Trustee shall notify the Company promptly
(but in any case within seven days of the Trustee’s receipt of the notice from
the Company referred to in Section 3.01 unless a shorter notice is
acceptable to the Company) of the Securities or portions of the Securities
selected to be redeemed and, in the case of any Securities selected for partial
redemption, the method it has chosen for the selection of the portions of the
Securities selected to be redeemed.


 


Following a notice of
redemption, Securities and portions of Securities are convertible pursuant to Article 4,
by the Holder until the close of business on the Business Day prior to the
Redemption Date.  If any Security
selected for partial redemption is converted in part before termination of the
conversion right with respect to the portion of the Security so selected, the
converted portion of such Security shall be deemed (so far as may be) to be the
portion selected for redemption. 
Securities that have been converted during a selection of Securities to
be redeemed may be treated by the Trustee as outstanding for the purpose of
such selection.


 


Section 3.03.          Notice
of Redemption.


 


At least 30 days but no more
than 60 days before a Redemption Date, the Company shall mail a notice of
redemption (substantially in the form set forth in Exhibit A) by
first-class mail, postage prepaid, to each Holder of Securities to be redeemed.


 


The
notice shall identify the Securities to be redeemed and shall state (along with
any other information the Company wishes to include):


 


(a)           the Redemption Date;


 


(b)           the Redemption Price;


 


(c)           the Conversion Rate;


 


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


 


(e)           that Securities may be converted at
any time before the close of business on the Business Day prior to the
Redemption Date;


 


(f)            that Securities called for
redemption and not converted shall be redeemed on the Redemption Date;


 


(g)           that Holders who want to convert
their Securities must satisfy the requirements set forth in the Securities;


 


(h)           that Securities called for redemption
must be surrendered to the Paying Agent (by effecting book entry transfer of
the Securities or delivering Certificated Securities, together with necessary
endorsements, as the case may be) to collect the Redemption Price;


 


25

















 


(i)            if fewer than all of the outstanding
Securities are to be redeemed, the certificate numbers, if any, and principal
amounts of the particular Securities to be redeemed;


 


(j)            that, unless the Company defaults in
making payments of such Redemption Price, interest (including Additional
Interest and Special Interest), if any, on the Securities called for redemption
shall cease to accrue from and after the Redemption Date; and


 


(k)           the CUSIP or other similar number(s),
as the case may be, of the Securities being redeemed.


 


At the Company’s request,
the Trustee shall give the notice of redemption in the Company’s name and at
the Company’s expense, provided that
the Company makes such request at least seven Business Days (or such shorter
period as may be satisfactory to the Trustee) prior to the date by which such
notice of redemption must be given to Holders in accordance with this Section 3.03.


 


Section 3.04.          Effect of Notice of Redemption.


 


Once notice of redemption is
given, Securities called for redemption become due and payable on the
Redemption Date and at the Redemption Price stated in the notice except for
Securities that are converted in accordance with the terms of this Indenture.  Upon surrender to the Paying Agent, such
Securities shall be paid at the Redemption Price stated in the notice and from
and after the Redemption Date (unless the Company shall default in the payment
of the Redemption Price) such Securities shall cease to bear interest (including
Additional Interest and Special Interest), if any, and the rights of the
Holders therein shall terminate (other than the right to receive the Redemption
Price).


 


Section 3.05.          Deposit of
Redemption Price.


 


Prior to 10:00 a.m.
(New York City time), on the Redemption Date, the Company shall deposit with
the Paying Agent (or if the Company or a Subsidiary or an Affiliate of either
of them is the Paying Agent, shall segregate and hold in trust) money
sufficient to pay the Redemption Price of all Securities to be redeemed on that
date other than Securities or portions of Securities called for redemption
which on or prior thereto have been delivered by the Company to the Trustee for
cancellation or have been converted.  Upon
written request of the Company, the Paying Agent shall as promptly as
practicable return to the Company any money not required for the purpose of
paying the Redemption Price because of conversion of Securities pursuant to Article 4.  If such money is then held by the Company or
a Subsidiary or an Affiliate of either in trust and is not required for such
purpose it shall be discharged from such trust.


 


Section 3.06.          Securities
Redeemed in Part.


 


Upon surrender of a Security
that is redeemed in part, the Company shall execute and the Trustee shall,
without charge, authenticate and deliver to the Holder a new Security in an
authorized denomination equal in principal amount to the unredeemed portion of
the Security surrendered.


 


26

















 


Section 3.07.          Repurchase of
Securities by the Company at Option of the Holder.


 


(a)           On each of May 1, 2014, May 1, 2019 and May 1,
2024, (each, a “Specified Repurchase Date”), each Holder shall have the
option to require the Company to repurchase all or a portion of the Securities
for which that Holder has properly delivered and not withdrawn a written
Repurchase Notice (as described below) at a repurchase price in cash equal
to 100% of the principal amount of those Securities, plus accrued and unpaid
interest (including Additional Interest and Special Interest), if any, on those
Securities, to, but excluding, such Specified Repurchase Date (the “Repurchase
Price”). Not later than 20 Business Days prior to any Specified Repurchase
Date, the Company shall mail a notice (substantially in the form set forth in Exhibit A) (the
“Company Notice”) by first class mail to the Trustee and to each Holder (and to
beneficial owners if required by applicable law).  The Company Notice shall include a form of
Repurchase Notice to be completed by a Holder and shall state:


 


(i)            the Repurchase Price and the Conversion Rate;


 


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


 


(iii)          that Securities as to which a Repurchase Notice has been
given may be converted only if they are otherwise convertible in accordance
with Article 4 hereof and the terms of the Securities if the applicable
Repurchase Notice has been withdrawn in accordance with the terms of this
Indenture;


 


(iv)          that Securities must be surrendered to the Paying Agent (by
effecting book entry transfer of the Securities or delivering Certificated
Securities, together with necessary endorsements, as the case may be) to
collect payment;


 


(v)           that the Repurchase Price for any security as to which a
Repurchase Notice has been given and not withdrawn shall be paid promptly
following the later of the Specified Repurchase Date and the time of surrender
of such Security as described in clause (iv) above;


 


(vi)          the other procedures the Holder must follow to exercise its
right to require the Company to repurchase such Holder’s Securities under this Section 3.07
and a brief description of that right;


 


(vii)         briefly, the conversion rights that exist at the date of the
Company Notice;


 


(viii)        that, unless the Company defaults in
making payment on Securities for which a Repurchase Notice has been submitted,
interest (including Additional Interest and Special Interest), if any, on such
Securities shall cease to accrue from and after the Specified Repurchase Date;


 


(ix)           the CUSIP or other similar number(s), as the case may be,
of the Securities;


 


27

















 


(x)            that any Security not properly tendered or otherwise not
accepted for repurchase shall remain outstanding and continue to accrue
interest (including Additional Interest and Special Interest), if any;


 


(xi)           that, in order to withdraw any Repurchase Notice
previously delivered by a Holder to the Paying Agent, the Holder must deliver
to the Paying Agent, prior to the close of business on the Business Day
immediately preceding the Specified Repurchase Date, a written notice of
withdrawal specifying (A) the certificate number, if any, of the
Securities in respect of which such notice of withdrawal is being submitted (or
if Certificated Securities have not been issued, the notice of withdrawal must
comply with the Applicable Procedures), (B) the principal amount of
Securities in respect of which such notice of withdrawal is being submitted,
and (C) if the Holder is not withdrawing its Repurchase Notice for all of
its Securities, the principal amount of the Securities which still remain
subject to the original Repurchase Notice; and


 


(xii)          that Holders whose Securities are being repurchased only in
part will be issued new Securities equal in principal amount to the portion of
the Securities that is not to be repurchased, which portion must be equal to
$1,000 in principal amount or an integral multiple thereof.


 


At
the Company’s request, the Trustee shall give such Company Notice to each
Holder in the Company’s name and at the Company’s expense; provided,
however, that, in all cases, the text of such Company Notice shall
be prepared by the Company.  No failure of the Company to give the Company Notice and no defect
therein shall limit the purchase rights of the Holders of Securities or affect
the validity of the proceedings for the purchase of the Securities pursuant to
this Section 3.07.


 


(b)           A Holder may exercise its rights
specified in Section 3.07(a) upon delivery to the Paying Agent of a
written notice of repurchase substantially in the form set forth in Exhibit A
(a “Repurchase Notice”) during the period beginning at any time
from the opening of business on the date that is 20 Business Days prior to the
relevant Specified Repurchase Date until the close of business on the Business
Day immediately preceding such Specified Repurchase Date, stating:


 


(i)            if Certificated Securities have been issued, the
certificate number(s) of the Securities which the Holder shall deliver to
be repurchased or, if Certificated Securities have not been issued for such
Security, the Repurchase Notice shall comply with the Applicable Procedures;


 


(ii)           the portion of the principal amount of the Security which
the Holder shall deliver to be repurchased, which portion must be in principal
amounts of $1,000 or an integral multiple of $1,000; and


 


(iii)          that such Security (or portion thereof) shall be
repurchased by the Company as of the Repurchase Date pursuant to the terms and
conditions specified in the Securities and in this Indenture.


 


28

















 


The
delivery of such Security (together with all necessary endorsements) to the
Paying Agent at any time after delivery of the Repurchase Notice at the offices
of the Paying Agent shall be a condition to receipt by the Holder of the
Repurchase Price therefor; provided, however,
that such Repurchase Price shall be so paid pursuant to this Section 3.07
only if the Security (together with all necessary endorsements) so
delivered to the Paying Agent shall conform in all respects to the description
thereof in the related Repurchase Notice.


 


The
Company shall only be obliged to purchase, pursuant to this Section 3.07,
a portion of a Security if the principal amount of such portion is $1,000 or an
integral multiple thereof.  Provisions of
this Indenture that apply to the repurchase of all of a Security also apply to
the repurchase of such portion of such Security.


 


Any
repurchase by the Company contemplated pursuant to the provisions of this Section 3.07
shall be consummated by the delivery of the Repurchase Price to be received by
the Holder promptly following the later of the Specified Repurchase Date and
the time of delivery of the Security (or portion thereof) to be repurchased
(together with all necessary endorsements or notifications of book-entry
transfer).


 


Notwithstanding
anything herein to the contrary, any Holder delivering to the Paying Agent the
Repurchase Notice contemplated by this Section 3.07 shall have the right
to withdraw such Repurchase Notice by delivery of a written notice of
withdrawal to the Paying Agent in accordance with Section 3.09(b) at
any time prior to the close of business on the Business Day immediately
preceding the Repurchase Date.


 


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


 


There
shall be no repurchase of any Securities pursuant to this Section 3.07 if
an Event of Default (other than a default in the payment of the Repurchase
Price) has occurred prior to, on or after, as the case may, the giving by the
Holders of such Securities of the required Repurchase Notice and such Event of
Default is continuing.  The Paying Agent
will promptly return to the respective Holders thereof any Securities (x) with
respect to which a Repurchase 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 Repurchase Price) in which case,
upon such return, the Repurchase Notice with respect thereto shall be deemed to
have been withdrawn.


 


Section 3.08.          Repurchase of
Securities at Option of the Holder upon a Fundamental Change.


 


(a)           In the event a Fundamental Change shall occur at any time
when any Securities remain outstanding, each Holder shall have the right, at
such Holder’s option, to require the Company to purchase all of such Holders’
Securities or any portion of the principal amount thereof that is equal to
$1,000 or an integral multiple thereof on a date specified by the Company (the “Fundamental
Change Purchase Date”, together with the Specified Repurchase Dates, the “Repurchase
Dates”) that is no earlier than the 20th calendar day
following the date of, and no later than the 35th calendar day
following the date of, delivery of the Fundamental Change 


 


29

















 


Company Notice (as defined below) at a
purchase price in cash equal to 100% of the principal amount of the Securities
tendered for purchase, plus accrued and unpaid interest (including Additional
Interest and Special Interest), if any, 
on those Securities to, but excluding, the Fundamental Change Purchase
Date (the “Fundamental Change Purchase Price”), subject to satisfaction
by or on behalf of any Holder of the requirements set forth in Section 3.08(c);
provided that if the Fundamental Change
Purchase Date is on a date that is after a Regular Record Date and on or prior
to the corresponding Interest Payment Date, the Fundamental Change Purchase
Price shall be 100% of the principal amount of the Securities repurchased but
shall not include accrued and unpaid interest (including Additional Interest
and Special Interest), if any. Instead, the Company shall pay such accrued and
unpaid interest (including Additional Interest and Special Interest), if any,
on the Interest Payment Date, to the Holder of record at the close of business
on the corresponding Regular Record Date.


 


(b)           On or before the 20th calendar day
after the occurrence of a Fundamental Change, the Company shall mail a written
notice of the occurrence of the Fundamental Change and of the resulting
purchase right to the Trustee, Paying Agent and to each Holder of record of
Securities (a “Fundamental Change Company Notice”).  The Fundamental Change Company Notice shall
include the form of a Fundamental Change Purchase Notice (defined below) to be
completed by the Holder and shall state:


 


(1)           the
events causing such Fundamental Change;


 


(2)           the
date of such Fundamental Change;


 


(3)           the
last date by which the Fundamental Change Purchase Notice must be delivered to
elect the purchase option pursuant to this Section 3.08;


 


(4)           the
Fundamental Change Purchase Date;


 


(5)           the
Fundamental Change Purchase Price;


 


(6)           the
Holder’s right to require the Company to purchase the Securities;


 


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


 


(8)           the
then effective Conversion Rate and any adjustments to the Conversion Rate
resulting from such Fundamental Change;


 


(9)           the
procedures that the Holder must follow to exercise rights under Article 4
of this Indenture and that the Securities as to which a Fundamental Change
Purchase Notice has been given may be converted into Common Stock pursuant to Article 4
of this Indenture only to the extent that the Fundamental Change Purchase
Notice has been withdrawn in accordance with the terms of this Indenture;


 


(10)         the
procedures that the Holder must follow to exercise rights under this Section 3.08;


 


(11)         the
procedures for withdrawing a Fundamental Change Purchase Notice;


 


30

















 


(12)         that,
unless the Company fails to pay such Fundamental Change Purchase Price,
Securities covered by any Fundamental Change Purchase Notice will cease to be
outstanding and interest, (including Additional Interest and Special Interest),
if any, will cease to accrue on and after the Fundamental Change Purchase Date;
and


 


(13)         the
CUSIP number of the Securities.


 


At
the Company’s written request, the Trustee shall give such Fundamental Change
Company Notice in the Company’s name and at the Company’s expense; provided that, in all cases, the text of such Fundamental
Change Company Notice shall be prepared by the Company.  In connection with the delivery of the
Fundamental Change Notice to the Holders, the Company shall publish a notice
containing substantially the same information that is required in the
Fundamental Change Company Notice in a newspaper of general circulation in the
City of New York or publish information on a website of the Company or through
such other public medium the Company may use at that time.  If any of the Securities is in the form of a
Global Security, then the Company shall modify such notice to the extent
necessary to accord with the Applicable Procedures relating to the purchase of
Global Securities.  No failure of the Company to give the Fundamental Change Company Notice
and no defect therein shall limit the purchase rights of the Holders of
Securities or affect the validity of the proceedings for the purchase of the
Securities pursuant to this Section 3.08.


 


(c)           A Holder may exercise its rights specified in Section 3.08(a) upon
delivery of a written notice (which shall be in substantially the form set
forth in the form of Security attached as Exhibit A under the heading “Fundamental
Change Purchase Notice” and which may be delivered by letter, overnight
courier, hand delivery, facsimile transmission or in any other written form
and, in the case of Global Securities, may be delivered electronically or by other
means in accordance with the Depositary’s Applicable Procedures) of the
exercise of such rights (a “Fundamental Change Purchase Notice”) to the
Paying Agent at any time prior to the close of business on the Business Day
immediately preceding the Fundamental Change Purchase Date, subject to
extension to comply with applicable law.


 


(1)           The
Fundamental Change Purchase Notice shall state: 
(A) if Certificated Securities are to be purchased, the certificate
numbers of the Securities which the Holder will deliver to be purchased (or, if
the Security is held in global form, any other items required to comply with
the Applicable Procedures), (B) the portion of the principal amount of the
Securities which the Holder will deliver to be purchased, which portion must be
a principal amount of $1,000 or any integral multiple thereof and (C) that
such Security shall be purchased as of the Fundamental Change Purchase Date
pursuant to the terms and conditions specified in the Securities and in this
Indenture.


 


(2)           The
delivery of a Security for which a Fundamental Change Purchase Notice has been
timely delivered to any Paying Agent and not validly withdrawn prior to, on or
after the Fundamental Change Purchase Date (together with all necessary
endorsements) at the office of such Paying Agent shall be a condition to the
receipt by the Holder of the Fundamental Change Purchase Price therefor.


 


31

















 


(3)           The
Company shall only be obliged to purchase, pursuant to this Section 3.08,
a portion of a Security if the principal amount of such portion is $1,000 or an
integral multiple thereof.  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.


 


(4)           Notwithstanding
anything herein to the contrary, any Holder delivering to a Paying Agent the
Fundamental Change Purchase Notice contemplated by this Section 3.08(c) shall
have the right to withdraw such Fundamental Change Purchase Notice in whole or
in a portion thereof that is a principal amount of $1,000 or in an integral
multiple thereof at any time prior to the close of business on the Business Day
prior to the Fundamental Change Purchase Date by delivery of a written notice
of withdrawal to the Paying Agent in accordance with Section 3.09(b).


 


(5)           A
Paying Agent shall promptly notify the Company of the receipt by it of any
Fundamental Change Purchase Notice or written withdrawal thereof.


 


(6)           Anything
herein to the contrary notwithstanding, in the case of Global Securities, any
Fundamental Change Purchase Notice may be delivered or withdrawn and such
Securities may be surrendered or delivered for purchase in accordance with the
Applicable Procedures as in effect from time to time.


 


(7)           There
shall be no repurchase of any Securities pursuant to this Section 3.08 if
an Event of Default (other than a default in the payment of the Fundamental
Change Purchase Price) has occurred prior to, on or after, as the case may, the
giving by the Holders of such Securities of the required Fundamental Change
Purchase Notice and such Event of Default is continuing.  The Paying Agent will promptly return to the
respective Holders thereof any Securities (x) with respect to which a
Fundamental Change 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 Fundamental Change Purchase Price)
in which case, upon such return, the Fundamental Change Repurchase Notice with
respect thereto shall be deemed to have been withdrawn.


 


Section 3.09.          Effect of Repurchase Notice
or Fundamental Change Purchase Notice.


 


(a)           Upon receipt by any Paying Agent of a Repurchase Notice or
a Fundamental Change Purchase Notice, the Holder of the Security in respect of
which such Repurchase Notice or Fundamental Change Purchase Notice, as the case
may be, was given shall (unless such Repurchase Notice or Fundamental Change
Purchase Notice is withdrawn as specified below) thereafter be entitled to
receive the Repurchase Price or Fundamental Change Purchase Price, as the case
may be, with respect to such Security. 
The Repurchase Price or Fundamental Change Purchase Price, as the case
may be, shall be paid to such Holder promptly following the later of (i) the
applicable Repurchase Date with respect to such Security (provided such Holder
has satisfied the conditions in Section 3.07 or 3.08, as the case may be)
and (ii) the time of delivery of such Security to a Paying Agent by the
Holder thereof in the manner required by Section 3.07 or 3.08, as the case
may be.  A Security in respect of which a
Repurchase Notice or a Fundamental Change Purchase Notice has been given by the
Holder thereof may not be 


 


32

















 


converted pursuant to Article 4 hereof
on or after the date of the delivery of such Repurchase Notice or Fundamental
Change Purchase Notice, unless either (i) such Repurchase Notice or
Fundamental Change Purchase Notice has first been validly withdrawn in
accordance with Section 3.09(b); or (ii) there shall be a default in
the payment of the Repurchase Price or Fundamental Change Purchase Price, provided, that the conversion right with respect to such
Security shall terminate at the close of business on the date such default is
cured and such Security is purchased in accordance herewith.


 


(b)           A Repurchase Notice or Fundamental Change Purchase Notice
may be withdrawn by any Holder delivering such Repurchase Notice or Fundamental
Change Purchase Notice, as the case may be, upon delivery of a written notice
of withdrawal (which may be delivered by mail, overnight courier, hand
delivery, facsimile transmission or in any other written form and, in the case
of Global Securities, may be delivered electronically or by other means in
accordance with the Applicable Procedures) to and actually received by Paying
Agent at any time prior to the close of business on the Business Day
immediately preceding the applicable Repurchase Date, specifying:


 


(i)            if
Certificated Securities are to be withdrawn, the certificate numbers of the
Securities in respect of which such notice of withdrawal is being submitted
(or, if the Security is held in global form, any other items required to comply
with the Applicable Procedures);


 


(ii)           the
principal amount of the Securities in respect of which such notice of
withdrawal is being submitted, which principal amount must be $1,000 or an
integral multiple thereof; and


 


(iii)          the
principal amount, if any, of the Securities that remains subject to the
original Repurchase Notice or Fundamental Change Purchase Notice, as the case
may be, and that has been or shall be delivered for purchase by the Company
which principal amount must be $1,000 or an integral multiple thereof.


 


The Paying Agent will promptly return to the
respective Holders thereof any Certificated Securities with respect to which a
Repurchase Notice or a Fundamental Change Purchase Notice has been withdrawn in
compliance with the provisions of this Section 3.09(b).


 


Section 3.10.          Deposit of Repurchase Price or
Fundamental Change Purchase Price.


 


Prior to 10:00 a.m.,
New York City time, on a Repurchase Date, the Company shall deposit with the
Paying Agent (or if the Company or an Affiliate of the Company is acting as the
Paying Agent, shall segregate and hold in trust as provided in Section 2.04)
an amount in cash (in immediately available funds) sufficient to pay the
aggregate Repurchase Price or Fundamental Change Purchase Price, as the case
may be, of all the Securities or portions thereof that are to be purchased on
that Repurchase Date.


 


If
a Paying Agent holds, in accordance with the terms hereof, at 10:00 a.m.,
New York City time, on a Repurchase Date, cash sufficient to pay the aggregate
Repurchase Price or Fundamental Change Purchase Price, as the case may be, of
all Securities for which a Repurchase Notice or Fundamental Change Purchase
Notice has been delivered and not validly 


 


33

















 


withdrawn in accordance with
this Indenture, then, on and after such Repurchase Date, such Securities shall
cease to be outstanding and interest (including Additional Interest and Special
Interest), if any, on such Securities shall cease to accrue, whether or not
such Securities are delivered to the Paying Agent, and the rights of the
Holders in respect thereof shall terminate (other than the right to receive the
Repurchase Price or Fundamental Change Purchase Price, as applicable, upon
delivery of such Securities by their Holders to the Paying Agent).


 


Section 3.11.          Securities
Purchased in Part.


 


Any
Certificated Security that is to be purchased only in part shall be surrendered
at the office of a Paying Agent (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
reasonably satisfactory to the Company and the Trustee duly executed by, the
Holder thereof or such Holder’s attorney duly authorized in writing), and
promptly after a Repurchase Date, the Company shall issue and the Trustee
shall, upon receipt of a Company Order (which the Company agrees to deliver
promptly), authenticate and deliver to the Holder of such Security, without
service charge, a new Security or Securities, of such authorized denomination
or denominations as may be 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 that is not purchased by the Company on such
Repurchase Date.


 


Section 3.12.          Repayment to
the Company.


 


To
the extent that the aggregate amount of cash deposited by the Company pursuant
to Section 3.10 exceeds the aggregate Repurchase Price or Fundamental
Change Purchase Price, as the case may be, of the Securities or portions
thereof that the Company is obligated to purchase on the applicable Repurchase
Date, then promptly after the applicable Repurchase Date, the Paying Agent
shall return any such excess cash to the Company.


 


Section 3.13.          Compliance
With Securities Laws Upon Purchase of Securities.


 


When
complying with the provisions of Article 3 hereof and subject to any
exemptions available under applicable law, the Company shall:


 


(a)           comply with the provisions of any
tender offer rules under the Exchange Act that may then be applicable to
the Company’s purchase of Securities under Article 3;


 


(b)           file a Schedule TO (or any successor
or similar schedule, form or report) if required under the Exchange Act; and


 


(c)           otherwise comply
with all federal and state securities laws so as to permit the rights and
obligations in connection with any purchase pursuant to this Article 3 to
be exercised in the time and in the manner specified herein.


 


To the extent that
compliance with any such laws, rules and regulations would result in a
conflict with any of the terms hereof, this Indenture is hereby modified to the
extent required for the Company to comply with such laws, rules and
regulations.


 


34

















 


Section 3.14.          Purchase of Securities In Open
Market.


 


The Company may purchase
Securities in the open market or by tender at any price or pursuant to private
agreements.  The Company shall surrender
any Security purchased by the Company pursuant to this Article 3 to the
Trustee for cancellation.  Any Securities
surrendered to the Trustee for cancellation may not be reissued or resold by
the Company and will be canceled promptly in accordance with Section 2.12.


 


ARTICLE 4


 


CONVERSION


 


Section 4.01.          Right to Convert.  (a)  Subject to and upon compliance with the
provisions of this Indenture, each Holder of Securities shall have the right,
at such Holder’s option, to convert the principal amount of any such
Securities, or any portion of such principal amount equal to $1,000 or a
multiple of $1,000 thereof, at the Conversion Rate in effect on the Conversion
Date for such Securities, at any time prior to the close of business on the
second Scheduled Trading Day immediately preceding the Final Maturity Date.


 


(b)           Securities may not be converted after the close of
business on the second Scheduled Trading Day immediately preceding the Final
Maturity Date.


 


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


 


(b)           In order to exercise the conversion privilege with respect
to any interest in a Global Security, the Holder must complete the appropriate
instruction form for conversion pursuant to the Depositary’s book-entry
conversion program, furnish appropriate endorsements and transfer documents if
required by the Company or the Conversion Agent, and pay the funds, if any,
required by Section 4.03(c) and any taxes or duties if required
pursuant to Section 4.08, and the Conversion Agent must be informed of the
conversion in accordance with the customary practice of the Depositary. In
order to exercise the conversion privilege with respect to any Certificated
Securities, the Holder of any such Securities to be converted, in whole or in
part, shall:


 


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


 


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


 


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


 


(iv)          make
any payment required under Section 4.03(c); and


 


(v)           if
required, pay all transfer or similar taxes as set forth in Section 4.08.


 


35
















 


The date on which the Holder
satisfies all of the applicable requirements set forth above is the “Conversion
Date.” The Conversion Agent will, as promptly as possible, and in any event
within two (2) Business Days of the receipt thereof, provide the Company
with notice of any conversion by a Holder of the Securities.


 


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


 


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


 


Each conversion shall be
deemed to have been effected as to any such Securities (or portion thereof)
surrendered for conversion on the relevant Conversion Date.  The person in whose name the certificate or
certificates for the number of shares of Common Stock that shall be issuable
upon such conversion shall become the holder of record of such shares of Common
Stock as of the close of business on such Conversion Date. Notwithstanding the
foregoing and anything contained in this Indenture to the contrary, in no event
shall a Holder be entitled to the benefit of a Conversion Rate adjustment
pursuant to the provisions of Section 4.04 in respect of Securities
surrendered for conversion if, by virtue of being deemed the record holder of
the shares of Common Stock issuable upon such conversion pursuant to the
foregoing sentence, such Holder participates, as a result of being such holder
of record, in the transaction or event that would otherwise give rise to such
Conversion Rate adjustment to the same extent and in the same manner as holders
of shares of Common Stock generally.


 


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


 


(f)            Notwithstanding the foregoing, a Security in respect of
which a Holder has delivered a Fundamental Change Purchase Notice exercising
such Holder’s option to require the Company to purchase such Security may be
converted only if such notice of exercise is withdrawn in accordance with Article 3
hereof prior to the close of business on the Business Day prior to the relevant
Fundamental Change Purchase Date.


 


Section 4.03.          Payments Upon Conversion.  (a) Upon any conversion of any
Securities, on the third Business Day immediately following the Conversion
Date, the Company shall deliver to the converting Holder a number of shares of
Common Stock equal to (i) the aggregate principal amount of such
Securities to be converted divided by $1,000, multiplied by (ii) the 


 


36

















 


Conversion
Rate in effect as of such Conversion Date, together with any cash payment for
any fractional share of Common Stock as described in this Section 4.03.


 


(b)           Subject to Section 4.03(c) below, upon
conversion, Holders shall not receive any separate cash payment for accrued and
unpaid interest (including Additional Interest and Special Interest), if any,
unless such conversion occurs between a Regular Record Date and the Interest
Payment Date to which it relates.


 


(c)           Upon the conversion of any Securities, the Holder will not
be entitled to receive any separate cash payment for accrued and unpaid
interest (including Additional Interest and Special Interest), if any, except
to the extent specified below. The Company’s delivery to the Holder of Common
Stock together with any cash payment for any fractional share of Common Stock,
into which a Security is convertible will be deemed to satisfy in full the
Company’s obligation to pay the principal amount of the Securities so converted
and accrued and unpaid interest (including Additional Interest and Special
Interest), if any, to, but not including, the Conversion Date. As a result,
accrued and unpaid interest (including Additional Interest and Special
Interest), if any, to, but not including, the Conversion Date will be deemed to
be paid in full rather than cancelled, extinguished or forfeited.
Notwithstanding the foregoing, if Securities are converted after the close of
business on a Regular Record Date for the payment of interest, Holders of such
Securities at the close of business on such Regular Record Date will receive
the interest (including Additional Interest and Special Interest), if any,
payable on such Securities on the corresponding Interest Payment Date
notwithstanding the conversion. Securities surrendered for conversion during
the period from the close of business on any Regular Record Date to the open of
business on the immediately following Interest Payment Date must be accompanied
by funds equal to the amount of interest (including Additional Interest and
Special Interest), if any, payable on the Securities so converted on such
following Interest Payment Date; provided that no such payment need be made (i) if
the Company has called the Securities for redemption on a Redemption Date that
falls after a Regular Record Date for an Interest Payment Date and on or prior
to the related Interest Payment Date, (ii) for conversions following the
Regular Record Date immediately preceding the Final Maturity Date, (iii) if
the Company has specified a Fundamental Change Purchase Date that is after a
Regular Record Date and on or prior to the corresponding Interest Payment Date,
or (iv) to the extent of any overdue interest, if any overdue interest
exists at the time of conversion with respect to such Security.


 


(d)           The Company shall not issue fractional shares of Common
Stock upon conversion of Securities. If multiple Securities shall be
surrendered for conversion at one time by the same Holder, the number of full
shares which shall be issuable upon conversion shall be computed on the basis
of the aggregate principal amount of the Securities (or specified portions
thereof to the extent permitted hereby) so surrendered. If any fractional share
of Common Stock would be issuable upon the conversion of any Securities, the
Company shall make payment therefor in cash in lieu of fractional shares of
Common Stock based on the Last Reported Sale Price on the relevant Conversion
Date.


 


Section 4.04.          Adjustment of Conversion Rate.  The Conversion Rate shall be adjusted from
time to time by the Company if any of the following events occurs, except that
the Company will not make any adjustment to the Conversion Rate if Holders of
Securities participate, as a result of holding the Securities, in any of the
transactions described under 


 


37

















 


Section 4.04(a) (but
only with respect to stock dividends or distributions), Section 4.04(b), Section 4.04(c),
and Section 4.04(d), at the same time as holders of the Common Stock
participate, without having to convert their Securities, as if such Holders
held a number of shares of Common Stock equal to the Conversion Rate in effect
for such Securities immediately prior to the Record Date for such event.


 


(a)           If the Company, at any time or from time to time while any
of the Securities are outstanding, exclusively issues shares of its Common
Stock as a dividend or distribution on shares of Common Stock, or if the
Company effects a share split or share combination, then the Conversion Rate
will be adjusted based on the following formula:


 




	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  CR1

  	
  =

  	
  CR0

  	
  x

  	
  OS1

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  OS0

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  






 


where,


 


	
  CR0

  	
   

  	
  =

  	
   

  	
  the Conversion Rate in
  effect immediately prior to the open of business on the Record Date of such
  dividend or distribution, or immediately prior to the open of business on the
  effective date of such share split or share combination, as applicable;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CR1

  	
   

  	
  =

  	
   

  	
  the Conversion Rate in
  effect immediately after the open of business on such Record Date or such
  effective date;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  OS0

  	
   

  	
  =

  	
   

  	
  the number of shares of
  Common Stock outstanding immediately prior to the open of business on such
  Record Date or such effective date; and

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  OS1

  	
   

  	
  =

  	
   

  	
  the number of shares of
  Common Stock outstanding immediately after giving effect to such dividend,
  distribution, share split or share combination.

  



 


Such adjustment shall become
effective immediately after the open of business on the Record Date for such
dividend or distribution or the effective date for such share split or share
combination. If any dividend or distribution of the type described in this Section 4.04(a) is
declared but not so paid or made, the Conversion Rate shall again be adjusted
to the Conversion Rate which would then be in effect if such dividend or
distribution had not been declared.


 


(b)           If the Company, at any time or from time to time while any
of the Securities are outstanding, issues to all or substantially all holders
of the Common Stock any rights or warrants entitling them for a period of not
more than 60 calendar days after the announcement date of such issuance to
subscribe for or purchase shares of the Common Stock at a price per share less
than the average of the Last Reported Sale Prices of Common Stock for the 10
consecutive Trading-Day period ending on the Trading Day immediately preceding
the date of announcement of such issuance, the Conversion Rate shall be
adjusted based on the following formula:


 




	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  CR1

  	
  =

  	
  CR0

  	
  x

  	
  OS0 + X

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  OS0 + Y

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  






 


38

















 


where,


 


	
  CR0

  	
   

  	
  =

  	
   

  	
  the Conversion Rate in
  effect immediately prior to the open of business on the Record Date for such
  issuance;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CR1

  	
   

  	
  =

  	
   

  	
  the Conversion Rate in
  effect immediately after the open of business on such Record Date;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  OS0

  	
   

  	
  =

  	
   

  	
  the number of shares of
  Common Stock outstanding immediately prior to the open of business on such
  Record Date;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  X

  	
   

  	
  =

  	
   

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

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Y

  	
   

  	
  =

  	
   

  	
  the number of shares of
  Common Stock equal to the aggregate price payable to exercise such rights or
  warrants divided by the average of the Last
  Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day
  period ending on the Trading Day immediately preceding the date of
  announcement of the issuance of such rights or warrants.

  



 


To the extent such rights or
warrants are not exercised prior to their expiration or termination, the
Conversion Rate shall be readjusted to the Conversion Rate which would be in
effect had the adjustments made upon the issuance of such rights or warrants
been made on the basis of the delivery of only the number of shares of Common
Stock actually delivered. In the event that such rights or warrants are not so
issued, the Conversion Rate shall again be adjusted to be the Conversion Rate which
would then be in effect if the date fixed for the determination of shareholders
entitled to receive such rights or warrants had not been fixed. For the
purposes of this Section 4.04(b), in determining whether any rights or
warrants entitle the holders to subscribe for or purchase shares of Common
Stock at less than the average of the Last Reported Sale Prices of Common Stock
for the 10 consecutive Trading Day period ending on the Trading Day immediately
preceding the date of announcement of such issuance, and in determining the
aggregate exercise price payable for such shares of Common Stock, there shall
be taken into account any consideration received by the Company for such rights
or warrants and any amount payable on the exercise thereof, with the value of
such consideration, if other than cash, as shall be determined in good faith by
the Board of Directors.


 


(c)           If the Company, at any time or from time to time while the
Securities are outstanding, distributes shares of any class of capital stock of
the Company, evidences of its indebtedness, other assets or property of the
Company or rights or warrants to acquire the Company’s capital stock or other
securities to all or substantially all holders of its Common Stock, excluding:


 


(i)            dividends
or distributions and rights or warrants as to which an adjustment was effected
pursuant to Section 4.04(a) or Section 4.04(b);


 


(ii)           dividends
or distributions paid exclusively in cash; and


 


39

















 


(iii)          Spin-Offs
to which the provisions set forth below in this Section 4.04(c) shall
apply;


 


then the Conversion Rate
shall be adjusted based on the following formula:


 




	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  CR1

  	
  =

  	
  CR0

  	
  x

  	
  SP0

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  SP0 - FMV

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  






 


where,


 


	
  CR0

  	
   

  	
  =

  	
   

  	
  the Conversion Rate in
  effect immediately prior to the open of business on the Record Date for such
  distribution;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CR1

  	
   

  	
  =

  	
   

  	
  the Conversion Rate in
  effect immediately after the open of business on such Record Date;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SP0

  	
   

  	
  =

  	
   

  	
  the average of the Last
  Reported Sale Prices of the Common Stock over the 10 consecutive Trading
  Day period ending on the Trading Day immediately preceding the Record Date
  for such distribution; and

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  FMV

  	
   

  	
  =

  	
   

  	
  the fair market value (as
  determined by the Board of Directors) of the shares of capital stock,
  evidences of indebtedness, assets, property, rights or warrants distributed
  with respect to each outstanding share of the Common Stock on the Record Date
  for such distribution.

  



 


Such adjustment shall become
effective immediately after the open of business on the Record Date for such
distribution. If the Board of Directors determines the “FMV” (as defined above)
of any distribution for purposes of this Section 4.04(c) by reference
to the actual or when issued trading market for any securities, it must in
doing so consider the prices in such market over the same period used in
computing the average of the Last Reported Sale Prices of the Common Stock.
Notwithstanding the foregoing, if “FMV” (as defined above) is equal to or
greater than “SP0” (as defined above), in lieu of the foregoing adjustment,
each Holder of Securities shall receive, at the same time and upon the same
terms as holders of the Common Stock, the amount and kind of securities and
assets such Holder would have received as if such Holder owned a number of
shares of Common Stock equal to the Conversion Rate in effect on the Record
Date for the distribution of the securities or assets.


 


With
respect to an adjustment pursuant to this Section 4.04(c) where there
has been a payment of a dividend or other distribution on the Common Stock of
shares of capital stock of any class or series, or similar equity interest, of
or relating to a Subsidiary or other business unit and such shares of capital
stock or similar equity interests are listed for trading on a securities
exchange (a “Spin-Off”), the Conversion Rate shall be increased based on the
following formula:


 




	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  CR1

  	
  =

  	
  CR0

  	
  x

  	
  FMV0 + MP0

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  MP0

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  






 


where,


 


40

















 


	
  CR0

  	
   

  	
  =

  	
   

  	
  the Conversion Rate in
  effect immediately prior to the end of the Valuation Period (as defined
  below);

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CR1

  	
   

  	
  =

  	
   

  	
  the Conversion Rate in
  effect immediately after the end of the Valuation Period;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  FMV0

  	
   

  	
  =

  	
   

  	
  the average of the Last
  Reported Sale Prices of the capital stock or similar equity interest
  distributed to holders of Common Stock applicable to one share of Common
  Stock (determined for purposes of the definition of Last Reported Sale Price
  as if such capital stock or similar equity interest were the Common Stock)
  over the first ten consecutive Trading Day period after, and including, the
  Record Date of the Spin-Off (the “Valuation Period”); and

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  MP0

  	
   

  	
  =

  	
   

  	
  the average of the Last
  Reported Sale Prices of Common Stock over the Valuation Period.

  



 


The adjustment to the
Conversion Rate under the preceding paragraph will occur on the last day of the
Valuation Period; provided that in respect of any conversion during the
Valuation Period, references above to 10 Trading Days shall be deemed replaced
with such lesser number of Trading Days as have elapsed between the Record Date
of such Spin-Off and the Conversion Date in determining the applicable
Conversion Rate.


 


For the purposes of this Section 4.04(c) (and
subject in all respects to Section 4.11), rights or warrants distributed
by the Company to all holders of its Common Stock entitling them to subscribe
for or purchase shares of the Company’s capital stock (either initially or
under certain circumstances), which rights or warrants, until the occurrence of
a specified event or events (a “Trigger Event”): (1) are deemed to
be transferred with such shares of Common Stock; (2) are not exercisable;
and (3) are also issued in respect of future issuances of Common Stock,
shall be deemed not to have been distributed for purposes of this Section 4.04(c),
(and no adjustment to the Conversion Rate under this Section 4.04(c) will
be required) until the occurrence of the earliest Trigger Event, whereupon such
rights and warrants shall be deemed to have been distributed and an appropriate
adjustment (if any is required) to the Conversion Rate shall be made under this
Section 4.04(c). If any such right or warrant, including any such existing
rights or warrants distributed prior to the date of this Indenture, are subject
to events, upon the occurrence of which such rights or warrants become
exercisable to purchase different securities, evidences of indebtedness or
other assets, then the date of the occurrence of any and each such event shall
be deemed to be the date of distribution and Record Date of such deemed
distribution (in which case the original rights or warrants shall be deemed to
terminate and expire on such date without exercise by any of the holders). In
addition, in the event of any distribution or deemed distribution of rights or
warrants, or any Trigger Event or other event (of the type described in the
preceding sentence) with respect thereto that was counted for purposes of
calculating a distribution amount for which an adjustment to the Conversion
Rate under this Section 4.04(c) was made, (1) in the case of any
such rights or warrants which shall all have been redeemed or purchased without
exercise by any Holders thereof, upon such final redemption or repurchase (x) the
Conversion Rate shall be readjusted as if such rights or warrants had not been
issued and (y) the Conversion Rate shall then again be readjusted to give
effect to such distribution, deemed distribution or Trigger Event, as the case
may be, as though it were a cash distribution, equal to the per share
redemption or purchase price received by holders of Common 


 


41

















 


Stock
with respect to such rights or warrants (assuming each such holder had retained
such rights or warrants), made to all holders of Common Stock as of the date of
such redemption or purchase, and (2) in the case of such rights or
warrants which shall have expired or been terminated without exercise by any
holders thereof, the Conversion Rate shall be readjusted as if such rights and
warrants had not been issued.


 


For the purposes of this Section 4.04(c) and
subsections (a) and (b) of this Section 4.04, any dividend or
distribution to which this Section 4.04(c) applies which also
includes one or both of:


 


(A)                              a dividend or
distribution of shares of Common Stock to which Section 4.04(a) applies
(the “Clause A Distribution”), and


 


(B)                                a dividend or
distribution of rights or warrants to which Section 4.04(b) applies
(the “Clause B Distribution”),


 


then (1) such dividend
or distribution, other than the Clause A Distribution and the Clause B
Distribution, shall be deemed to be a dividend or distribution to which this Section 4.04(c) applies
(the “Clause C Distribution”) and any Conversion Rate adjustment
required by this Section 4.04(c) with respect thereto shall then be
made, and (2) the Clause A Distribution and Clause B Distribution shall be
deemed to immediately follow the Clause C Distribution and any Conversion Rate
adjustment required by Section 4.04(a) and Section 4.04(b) with
respect thereto shall then be made, except that, if determined by the Company, (I) the
“Record Date” of the Clause A Distribution and the Clause B Distribution shall
be deemed to be the Record Date of the Clause C Distribution and (II) any
shares of Common Stock included in the Clause A Distribution or Clause B
Distribution shall be deemed not to be “outstanding immediately prior to the
open of business on such Record Date or such effective date” within the meaning
of Section 4.04(a) or “outstanding immediately prior to the open of
business on such Record Date” within the meaning of Section 4.04(b).


 


(d)           (i) If we pay any cash dividends or distributions to
all or substantially all holders of Common Stock, the Conversion Rate shall be
adjusted based on the following formula:


 




	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  CR1

  	
  =

  	
  CR0

  	
  x

  	
  SP0

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  SP0 - C

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  






 


where,


 


	
  CR0

  	
   

  	
  =

  	
   

  	
  the Conversion Rate in
  effect immediately prior to the open of business on the Record Date for such
  dividend or distribution;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CR1

  	
   

  	
  =

  	
   

  	
  the Conversion Rate in
  effect immediately after the open of business on the Record Date for such
  dividend or distribution;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SP0

  	
   

  	
  =

  	
   

  	
  the Last Reported Sale
  Price of the Common Stock on the Trading Day immediately preceding the Record
  Date for such dividend or distribution; and

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  C

  	
   

  	
  =

  	
   

  	
  the amount in cash per
  share the Company distributes to holders of Common Stock.

  



 


42

















 


In the case of an adjustment
pursuant to this Section 4.04(d), such adjustment shall become effective
immediately after the open of business on the Record Date for the relevant
dividend or distribution. If the portion of the cash so distributed applicable
to one share of the Common Stock is equal to or greater than the Last Reported
Sale Price of a share of Common Stock on the Trading Day immediately preceding
the Record Date for such dividend or distribution, in lieu of the adjustment
set forth above, adequate provision shall be made so that each Holder of
Securities shall have the right to receive on the date on which such cash
dividend or distribution is distributed to holders of Common Stock, for each
$1,000 principal amount of Securities, the amount of cash such Holder would
have received had such Holder owned a number of shares of Common Stock equal to
the Conversion Rate in effect immediately prior to the Record Date for such
distribution.


 


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


 




	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  CR1

  	
  =

  	
  CR0

  	
  x

  	
  AC + (SP1 x OS1)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  OS0 x SP1

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  






 


where,


 


	
  CR0

  	
   

  	
  =

  	
   

  	
  the Conversion Rate in
  effect immediately prior to the close of business on the 10th Trading Day
  immediately following, and including, the Trading Day next succeeding the
  date such tender or exchange offer expires;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CR1

  	
   

  	
  =

  	
   

  	
  the Conversion Rate in
  effect immediately after the close of business on the 10th Trading Day
  immediately following, and including, the Trading Day next succeeding the
  date such tender or exchange offer expires;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  AC

  	
   

  	
  =

  	
   

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

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  OS0

  	
   

  	
  =

  	
   

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

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  OS1

  	
   

  	
  =

  	
   

  	
  the number of shares of
  Common Stock outstanding immediately after the date such tender or exchange
  offer expires (after giving effect to, for the avoidance of doubt, the
  purchase of all shares accepted for purchase or exchange in such tender or
  exchange offer); and

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SP1

  	
   

  	
  =

  	
   

  	
  the average of the Last
  Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day
  period commencing on the Trading Day next succeeding the date such tender or
  exchange offer expires.

  



 


43

















 


The adjustment to the
Conversion Rate under this Section 4.04(e) shall occur as of the
close of business on the tenth Trading Day from, and including, the Trading Day
next succeeding the date such tender or exchange offer expires; provided that
in respect of any conversion within 10 Trading Days immediately following, and
including, the expiration date of any tender or exchange offer, references with
respect to 10 Trading Days shall be deemed replaced with such lesser number of
Trading Days as have elapsed between the expiration date of such tender or exchange
offer and the Conversion Date in determining the applicable Conversion Rate.


 


(f)            The Company from time to time may increase the Conversion
Rate by any amount for any period of time of at least 20 Business Days, so long
as the increase is irrevocable during the period and the Board of Directors
shall have made a determination that such increase would be in the best
interests of the Company, which determination shall be conclusive. Whenever the
Conversion Rate is increased pursuant to this Section 4.04(f), the Company
shall mail to Holders of record of the Securities a notice of the increase at
least one day prior to the date the increased Conversion Rate takes effect, and
such notice shall state the increased Conversion Rate and the period during
which it will be in effect.


 


(g)           The Company may (but shall not be required to) increase
the Conversion Rate, in addition to any adjustments pursuant to Section 4.04(a),
4.04(b), 4.04(c), 4.04(d), 4.04(e) or 4.04(f), if the Board of Directors
considers such increase to be advisable to avoid or diminish any income tax to
holders of Common Stock or rights to purchase Common Stock in connection with a
dividend or distribution of shares (or rights to acquire shares) or similar
event.


 


(h)           All calculations under this Article 4 shall be made
by the Company and shall be made to the nearest one ten-thousandth of a share.
No adjustment shall be required to be made for the Company’s issuance of Common
Stock or any securities convertible into or exchangeable for shares of Common
Stock or rights to purchase shares of Common Stock or such convertible or
exchangeable securities, other than as provided in this Section 4.04 and
in Section 4.11 hereof.


 


(i)            Whenever the Conversion Rate is adjusted as herein
provided, the Company shall promptly file with the Trustee and any Conversion
Agent an Officer’s Certificate setting forth the Conversion Rate after such
adjustment and setting forth a brief statement of the facts requiring such
adjustment. Unless and until a Responsible Officer of the Trustee shall have
received such Officer’s Certificate, the Trustee shall not be deemed to have
knowledge of any adjustment of the Conversion Rate and may assume without
inquiry that the last Conversion Rate of which it has knowledge is still in
effect. Promptly after delivery of such certificate, the Company shall prepare
a notice of such adjustment of the Conversion Rate setting forth the adjusted
Conversion Rate and the date on which each adjustment becomes effective and
shall mail such notice of such adjustment of the Conversion Rate to each Holder
of the Securities. Failure to deliver such notice shall not affect the legality
or validity of any such adjustment.


 


(j)            For purposes of this Section 4.04, the number of
shares of Common Stock at any time outstanding shall not include shares held in
the treasury of the Company so long as the Company does not pay any dividend or
make any distribution on shares of Common Stock held in the treasury of the
Company, but shall include shares issuable in respect of scrip certificates
issued in lieu of fractions of shares of Common Stock.


 


44

















 


(k)           Notwithstanding the foregoing, if the application of the
foregoing formulas set forth in this Section 4.04 would result in a
decrease in the Conversion Rate, no adjustment to the Conversion Rate shall be
made (other than as a result of a share combination).


 


(l)            Notwithstanding anything to the contrary in this Article 4,
no adjustment to the Conversion Rate shall be made:


 


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


 


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


 


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


 


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


 


(v)           for
accrued and unpaid interest (including Additional Interest and Special
Interest), if any, on the Securities.


 


(m)          The Company shall not be required to make an adjustment in
the Conversion Rate unless the adjustment would require a change of at least 1%
in the Conversion Rate. However, the Company will carry forward any adjustments
that are less than 1% of the Conversion Rate and make such carried forward
adjustment, regardless of whether the aggregate adjustment is less than 1%,
upon any Conversion Date with respect to the Securities.


 


Section 4.05.          Certain Other Adjustments.  To the extent not otherwise covered by Section 4.04,
whenever a provision of this Indenture requires the calculation of Last
Reported Sale Prices over a span of multiple days, the Board of Directors will
make appropriate adjustments to such Last Reported Sale Prices and the
Conversion Rate or the amount due upon conversion to account for any adjustment
to the Conversion Rate that becomes effective, or any event requiring an
adjustment to the Conversion Rate where the Record Date of the event occurs, at
any time during the period from which such Last Reported Sale Prices are to be
calculated.  Any such adjustment in accordance
with the provisions of this Section 4.05 shall be determined in good faith
by the Board of Directors in order to give effect to the intent of Section 4.04
and the other provisions of this Article 4 and to avoid unjust or
inequitable results.


 


Section 4.06.          Adjustments Upon Certain
Fundamental Changes.  (a) If a
Make-Whole Fundamental Change occurs prior to May 1, 2014 and a Holder
elects to convert its Securities in connection with such Make-Whole Fundamental
Change, the Company shall, under certain circumstances, increase the Conversion
Rate for the Securities so surrendered for conversion by a number of additional
shares of Common Stock (the “Additional Shares”) as described below. A
conversion of Securities shall be deemed for these purposes to be “in
connection with” such


 


45
















 


Make-Whole
Fundamental Change if the notice of conversion of the Securities is received by
the Conversion Agent from, and including, the Effective Date of the Make-Whole
Fundamental Change up to, and including, the Business Day immediately prior to
the related Fundamental Change Purchase Date (or, in the case of an event that
would have been a Fundamental Change but for the proviso in clause (2) of
the definition thereof, the 35th calendar day immediately following the
Effective Date of such Make-Whole Fundamental Change).


 


(b)           Upon surrender of Securities for conversion in connection
with a Make-Whole Fundamental Change, the Company shall deliver shares of
Common Stock as provided under Section 4.03, calculated based on the
Conversion Rate as adjusted by the Additional Shares; provided, however, that
if, at the effective time of a Make-Whole Fundamental Change, the Reference
Property is comprised entirely of cash, then, for any conversion of Securities
following the Effective Date of such Make-Whole Fundamental Change, the amounts
deliverable by the Company shall be calculated based solely on the “Stock
Price” (as defined below) for the Make-Whole Fundamental Change and shall
be deemed to be an amount equal to the Conversion Rate (including any
adjustment for Additional Shares) multiplied by such Stock Price. In such
event, the amounts deliverable by the Company shall be determined and paid to
holders in cash on the third Business Day following the Conversion Date.


 


(c)           The number of Additional Shares, if any, by which the
Conversion Rate will be increased will be determined by reference to the table
below, based on the date on which the Make-Whole Fundamental Change occurs or
becomes effective (the “Effective Date”) and the price (the “Stock
Price”) paid (or deemed paid) per share of the Common Stock in the
Fundamental Change.  If the holders of
the Common Stock receive only cash in a Make-Whole Fundamental Change described
in clause (2) of the definition of Fundamental Change, the Stock
Price shall be the cash amount paid per share. 
Otherwise, the Stock Price shall be the average of the Last Reported
Sale Prices of the Common Stock over the ten Trading-Day period ending on, and
including, the Trading Day immediately preceding the Effective Date of the
Make-Whole Fundamental Change.


 


The following
table sets forth the number of additional shares to be received per $1,000
principal amount of notes for each stock price and effective date set forth
below:


 


	
   

  	
   

  	
  Stock Price

  	
   

  
	
  Effective Date

  	
   

  	
  $29.75

  	
   

  	
  $32.50

  	
   

  	
  $35.00

  	
   

  	
  $40.00

  	
   

  	
  $50.00

  	
   

  	
  $60.00

  	
   

  	
  $70.00

  	
   

  	
  $80.00

  	
   

  	
  $90.00

  	
   

  	
  $100.00

  	
   

  	
  $125.00

  	
   

  	
  $150.00

  	
   

  
	
  May 8, 2009

  	
   

  	
  6.1739

  	
   

  	
  5.3208

  	
   

  	
  4.4676

  	
   

  	
  3.4701

  	
   

  	
  2.3587

  	
   

  	
  1.7756

  	
   

  	
  1.4269

  	
   

  	
  1.1916

  	
   

  	
  1.0167

  	
   

  	
  0.8812

  	
   

  	
  0.6424

  	
   

  	
  0.4862

  	
   

  
	
  May 1, 2010

  	
   

  	
  6.1739

  	
   

  	
  4.9952

  	
   

  	
  4.2272

  	
   

  	
  3.1685

  	
   

  	
  2.0551

  	
   

  	
  1.5155

  	
   

  	
  1.1791

  	
   

  	
  0.9782

  	
   

  	
  0.8309

  	
   

  	
  0.7169

  	
   

  	
  0.5168

  	
   

  	
  0.3859

  	
   

  
	
  May 1, 2011

  	
   

  	
  6.1739

  	
   

  	
  4.7732

  	
   

  	
  3.9139

  	
   

  	
  2.7676

  	
   

  	
  1.6590

  	
   

  	
  1.1795

  	
   

  	
  0.9462

  	
   

  	
  0.7880

  	
   

  	
  0.6731

  	
   

  	
  0.5843

  	
   

  	
  0.4279

  	
   

  	
  0.3245

  	
   

  
	
  May 1, 2012

  	
   

  	
  6.1739

  	
   

  	
  4.5074

  	
   

  	
  3.5217

  	
   

  	
  2.2694

  	
   

  	
  1.2019

  	
   

  	
  0.8204

  	
   

  	
  0.6478

  	
   

  	
  0.5403

  	
   

  	
  0.4624

  	
   

  	
  0.4016

  	
   

  	
  0.2934

  	
   

  	
  0.2215

  	
   

  
	
  May 1, 2013

  	
   

  	
  6.1739

  	
   

  	
  3.8863

  	
   

  	
  2.7472

  	
   

  	
  1.4387

  	
   

  	
  0.6016

  	
   

  	
  0.4186

  	
   

  	
  0.3415

  	
   

  	
  0.2902

  	
   

  	
  0.2511

  	
   

  	
  0.2198

  	
   

  	
  0.1637

  	
   

  	
  0.1263

  	
   

  
	
  May 1, 2014

  	
   

  	
  6.1739

  	
   

  	
  3.3297

  	
   

  	
  1.1319

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  



 


The exact Stock Prices and
Effective Dates may not be set forth in the table above, in which case:


 


(i)            If
the Stock Price is between two Stock Prices in the table or the Effective Date
is between two Effective Dates in the table, the number of Additional Shares
shall be determined by a straight-line interpolation between the number of
Additional Shares 


 


46

















 


set forth for the higher and lower Stock Prices and the earlier and
later Effective Dates, as applicable, based on a 365-day year.


 


(ii)           If
the Stock Price is greater than $150.00 per share (subject to adjustment in the
same manner as the Stock Prices set forth in the column headings of the table
in Schedule A pursuant to subsection (d) below), no Additional Shares
shall be added to the Conversion Rate.


 


(iii)          If
the Stock Price is less than $29.75 per share (subject to adjustments in the
same manner as the Stock Prices set forth in the column headings of the table
in Schedule A pursuant to subsection (d) below), no Additional Shares shall
be added to the Conversion Rate.


 


Notwithstanding the
foregoing, in no event shall the Conversion Rate exceed 33.6134 shares of
Common Stock per $1,000 principal amount of Securities, subject to adjustments
in the same manner as the Conversion Rate as set forth in Section 4.04.


 


(d)           The Stock Prices set forth in the column headings of the
table above shall be adjusted as of any date on which the Conversion Rate of
the Securities is otherwise adjusted. 
The adjusted Stock Prices shall equal the Stock Prices applicable
immediately prior to such adjustment, multiplied by a fraction, the numerator
of which is the Conversion Rate immediately prior to such adjustment giving
rise to the Stock Price adjustment and the denominator of which is the
Conversion Rate as so adjusted. The number of Additional Shares set forth in
such table shall be adjusted in the same manner as the Conversion Rate as set
forth in Section 4.04.


 


(e)           The Company shall notify the Holders of Securities of the
Effective Date of any Make-Whole Fundamental Change and issue a press release
announcing such Effective Date no later than five Business Days after such
Effective Date.


 


Section 4.07.          Effect of Recapitalization,
Reclassification, Consolidation, Merger or Sale.


 


(a)           If any of the following events occur:


 


(i)            any
recapitalization or reclassification of, or change in, the Common Stock (other
than changes resulting from a subdivision or combination);


 


(ii)           a
consolidation, merger or combination involving the Company; or


 


(iii)          a
sale, lease or other transfer to a third party of all or substantially all of
the consolidated assets of the Company and its Subsidiaries; or


 


(iv)          any
statutory share exchange;


 


in each case as a result of
which the Common Stock would be converted into, or exchanged for, or would be
reclassified or changed into, stock, other securities, other property or assets
(including cash or any combination thereof) (any such event, a “Merger Event”),
then at the effective time of such Merger Event, the Company or the successor or
purchasing Person, as the 


 


47

















 


case may be, shall execute
with the Trustee a supplemental indenture (which shall comply with the Trust
Indenture Act as in force at the date of execution of such supplemental
indenture) providing that at and after the effective time of such Merger Event,
the right to convert a Security will be changed into a right to convert such
Security as set forth in this Indenture into the kind and amount of shares of
stock, other securities or other property or assets (including cash or any
combination thereof) that a holder of a number of shares of Common Stock equal
to the Conversation Rate prior to such Merger Event would have owned or been
entitled to receive (the “Reference Property”) upon such Merger Event.


 


If, as a result of the
Merger Event, each share of Common Stock is converted into the right to receive
more than a single type of consideration (determined based in part upon any
form of stockholder election), then the Reference Property into which the
Securities will be convertible will be deemed to be the weighted average of the
types and amounts of consideration received by the holders of Common Stock that
affirmatively make such an election.


 


The Company shall not become
a party to any such Merger Event unless its terms are consistent with this Section 4.07.
Such supplemental indenture shall provide for adjustments which shall be as
nearly equivalent as may be practicable to the adjustments provided for in this
Article 4 in the judgment of the Board of Directors or the board of
directors of the successor Person. If, in the case of any such
recapitalization, reclassification, change, consolidation, merger, combination,
sale, lease, other transfer or statutory share exchange, the Reference Property
receivable thereupon by a holder of Common Stock includes shares of stock,
securities or other property or assets (including cash or any combination
thereof) of a Person other than the successor or purchasing Person, as the case
may be, in such recapitalization, reclassification, change, consolidation,
merger, combination, sale, lease, other transfer or statutory share exchange,
then such supplemental indenture shall also be executed by such other Person.


 


(b)           The Company shall cause notice of the execution of such
supplemental indenture to be mailed to each Holder, at the address of such
Holder as it appears on the register of the Securities maintained by the
Registrar, within 20 days after execution thereof. Failure to deliver such notice
shall not affect the legality or validity of such supplemental indenture. The
above provisions of this Section 4.07 shall similarly apply to successive
reclassifications, changes, consolidations, mergers, combinations, sales and
conveyances. If this Section 4.07 applies to any Merger Event, Section 4.04
shall not apply.


 


Section 4.08.          Taxes on Shares Issued.  The Company will pay any documentary, stamp
or similar issue or transfer tax due on the issue or delivery of shares of
Common Stock on conversion of Securities pursuant hereto; provided, however,
that if such documentary, stamp or similar issue or transfer tax is due because
the Holder of such Securities has requested that shares of Common Stock be
issued in a name other than that of the Holder of the Securities converted,
then such taxes will be paid by the Holder, and the Company shall not be
required to issue or deliver any stock certificate evidencing such shares
unless and until the Holder shall have paid to the Company the amount of such
tax or shall have established to the satisfaction of the Company that such tax
has been paid.


 


Section 4.09.          Reservation of Shares; Shares to be
Fully Paid; Compliance With Governmental Requirements; Listing of Common Stock.  The Company shall reserve, out of its 


 


48

















 


authorized
but unissued shares or shares held in treasury, sufficient shares of Common
Stock to satisfy conversion of the Securities from time to time as such
Securities are presented for conversion (assuming that, at the time of the
computation of such number of shares or securities, all such Securities would
be converted by a single Holder).


 


The Company covenants that
all shares of Common Stock that may be issued upon conversion of Securities
shall be newly issued shares or treasury shares, shall be duly authorized,
validly issued, fully paid and non-assessable and shall be free from preemptive
rights and free from any tax, lien or charge (other than those created by the
Holder).


 


The Company shall cause any
shares of Common Stock to be issued upon conversion of Securities to be
designated for quotation or listing, subject to notice of issuance, on each
national securities exchange or over-the-counter or other domestic market on
which the Common Stock is then listed or quoted.


 


Section 4.10.          Responsibility of Trustee.  The Trustee and any Conversion Agent shall
not at any time be under any duty or responsibility to any Holder of Securities
to determine or calculate the Conversion Rate, to determine whether any facts
exist which may require any adjustment of the Conversion Rate, or to confirm
the accuracy of any such adjustment when made or the appropriateness of the
method employed, or herein or in any supplemental indenture provided to be
employed, in making the same. The Trustee and any other Conversion Agent shall
not be accountable with respect to the validity or value (or the kind or
amount) of any shares of Common Stock or of any other securities or property
that may at any time be issued or delivered upon the conversion of any
Securities; and the Trustee and the Conversion Agent make no representations
with respect thereto. Neither the Trustee nor any Conversion Agent shall be
responsible for any failure of the Company to issue, transfer or deliver any
shares of Common Stock or stock certificates or other securities or property or
cash upon the surrender of any Securities for the purpose of conversion or to
comply with any of the duties, responsibilities or covenants of the Company
contained in this Article 4. The rights, privileges, protections,
immunities and benefits given to the Trustee, including without limitation its
right to be compensated, reimbursed, and indemnified, are extended to, and
shall be enforceable by, the Trustee in each of its capacities hereunder,
including its capacity as Conversion Agent.


 


Section 4.11.          Notice to Holders Prior to Certain
Actions.  In case:


 


(a)           the Company shall declare a dividend (or any other
distribution) on its Common Stock that would require an adjustment in the
Conversion Rate pursuant to Section 4.04; or


 


(b)           the Company shall authorize the granting to the holders of
all or substantially all of its Common Stock of rights or warrants to subscribe
for or purchase any share of any class or any other rights or warrants that
would require an adjustment in the Conversion Rate pursuant to Section 4.04
or Section 4.12 hereof; or


 


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


 


49

















 


stockholders of the Company is required, or
of the sale, lease or transfer of all or substantially all of the assets of the
Company and its consolidated Subsidiaries; or


 


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


 


then, in each case (unless
notice of such event is otherwise required pursuant to another provision of
this Indenture), the Company shall cause to be filed with the Trustee and the
Conversion Agent and to be mailed to each Holder of Securities at such Holder’s
address appearing on a list of Holders of Securities, which the Company shall
provide to the Trustee, as promptly as practicable but in any event at least 10
days prior to the applicable date hereinafter specified, a notice stating (x) the
date on which a record is to be taken for the purpose of such dividend (or any
other distribution) or rights or warrants, or, if a record is not to be taken,
the date as of which the holders of Common Stock of record to be entitled to
such dividend, distribution or rights or warrants are to be determined, or (y) the
date on which such reclassification, reorganization, consolidation, merger,
sale, lease, transfer, dissolution, liquidation or winding up is expected to
become effective or occur, and the date as of which it is expected that holders
of Common Stock of record shall be entitled to exchange their Common Stock for
securities or other property deliverable upon such reclassification,
reorganization, consolidation, merger, sale, transfer, dissolution, liquidation
or winding up. Failure to give such notice, or any defect therein, shall not
affect the legality or validity of such dividend (or any other distribution),
reclassification, reorganization, consolidation, merger, sale, transfer,
dissolution, liquidation or winding up.


 


Section 4.12.          Stockholder Rights Plan.  Each share of Common Stock issued upon
conversion of Securities pursuant to this Article 4 shall be entitled to
receive the appropriate number of 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 any
stockholder rights plan adopted by the Company, as the same may be amended from
time to time. Notwithstanding the foregoing, if prior to any conversion such
rights have separated from the shares of Common Stock in accordance with the
provisions of the applicable stockholder rights agreement, the Conversion Rate
shall be adjusted at the time of separation as if the Company had distributed
to all holders of the Common Stock, shares of the Company’s capital stock,
evidences of indebtedness, assets, property, rights or warrants as described in
Section 4.04(c) above, subject to readjustment in the event of the
expiration, termination or redemption of such rights.


 


ARTICLE 5


 


COVENANTS


 


Section 5.01.          Payment of Securities.


 


(a)           The Company shall duly and punctually pay the principal of
and interest (including Additional Interest and Special Interest, if any) on
the Securities in accordance with 


 


50

















 


the terms of the Securities and this
Indenture, and will duly comply with all the other terms, agreements and
conditions contained in, or made in this Indenture for the benefit of, the
Holders.


 


(b)           A payment of principal or interest (including Additional
Interest and Special Interest, if any) shall be considered paid on the date it
is due if the Paying Agent (other than the Company) (or if the Company is the
Paying Agent, the segregated account or separate trust fund maintained by the
Company pursuant to Section 2.04) holds by 10:00 a.m., New York City
time, on that date money, deposited by or on behalf of the Company sufficient
to make the payment.  Accrued and unpaid
interest (including Additional Interest and Special Interest), including
Contingent Interest, if any, on any Security that is payable (whether or not
punctually paid or duly provided for) on any 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 for such interest at the office or agency
of the Company maintained for such purpose. 
The Company shall, to the fullest extent permitted by law, pay interest
in immediately available funds on overdue principal and interest at the annual
rate borne by the Securities compounded semiannually, which interest shall
accrue from the date such overdue amount was originally due to the day
preceding the date payment of such amount, including interest thereon, has been
made or duly provided for.  All such
interest shall be payable on demand.


 


(c)           Payment of the principal of and interest (including
Additional Interest and Special Interest), if any, on the Securities shall be made
at the office or agency of the Company maintained for that purpose in the
Borough of Manhattan, The City of New York (which shall initially be the
Corporate Trust Office of the Trustee) in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts; provided, however, that at the option of the Company payment of
interest (including Additional Interest and Special Interest) on any
Certificated Securities having an aggregate principal amount of $5,000,000 or
less may be made by check mailed to the address of the Person entitled thereto
as such address appears in the Register; provided further
that a Holder of a Certificated Security having an aggregate principal amount
of more than $5,000,000 will be paid by wire transfer in immediately available
funds at the election of such Holder if such Holder has provided wire transfer
instructions to the Trustee at least 10 Business Days prior to the payment
date.  Any wire transfer instructions
received by the Trustee will remain in effect until revoked by the Holder.  In the case of a permanent Global Security,
interest (including Additional Interest and Special Interest), if any, 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 5.02.          Reports by Company.


 


(a)           The Company shall deliver to the Trustee copies of all
annual reports, quarterly reports and other documents that it is required to
file with the SEC pursuant to Sections 13 or 15(d) of the Exchange
Act, within 15 days after such reports and other documents are required to be
filed with the SEC (giving effect to any grace period provided by Rule 12b-25
under the Exchange Act).  In the event
the Company at any time is no longer subject to the reporting requirements of Section 13
or 15(d) of the Exchange Act, the Company shall file with the Trustee all
reports, if any, as may be required by the provisions of TIA Section 314(a).


 


51

















 


(b)           The Company intends to file the reports referred to in Section 5.02(a) hereof
with the SEC in electronic form pursuant to Regulation S-T of the SEC using the
SEC’s Electronic Data Gathering, Analysis and Retrieval (“EDGAR”) system.  The Company shall notify the Trustee in the
manner prescribed herein of each such filing. 
The Trustee will be directed to access the EDGAR system for purposes of
retrieving the reports so filed. 
Compliance with the foregoing shall constitute delivery by the Company
of such reports to the Trustee in compliance with the provisions of Section 5.02(a) hereof.  The Trustee shall have no duty to search for
or obtain any electronic or other filings that the Company makes with the SEC,
regardless of whether such filings are periodic, supplemental or otherwise.


 


(c)           Delivery of such reports and documents to the Trustee is
for informational purposes only and the Trustee’s receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the compliance by
the Company with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officer’s Certificates).


 


Section 5.03.          Compliance Certificates.


 


The Company shall deliver to
the Trustee, within one hundred twenty (120) days after the end of each fiscal
year of the Company (beginning with the fiscal year ending July 31, 2009),
an Officer’s Certificate as to the signer’s knowledge of the Company’s
compliance with all conditions and covenants on its part contained in this
Indenture and stating whether or not the signer knows of any Default or Event
of Default.  If such signer knows of such
a Default or Event of Default, the Officer’s Certificate shall describe the
Default or Event of Default and the efforts to remedy the same.  For the purposes of this Section 5.03,
compliance shall be determined without regard to any grace period or
requirement of notice provided pursuant to the terms of this Indenture.  Such certificates need not comply with Section 12.04
of this Indenture.


 


Section 5.04.          Further Instruments and Acts.


 


Upon request of the Trustee,
the Company will execute and deliver such further instruments and do such
further acts as may be reasonably necessary or proper to carry out more
effectively the purposes of this Indenture.


 


Section 5.05.          Maintenance of Corporate Existence.


 


Subject to Article 6,
the Company will do or cause to be done all things necessary to preserve and
keep in full force and effect its corporate existence.


 


Section 5.06.          Rule 144A Information
Requirement.


 


Prior to the Resale
Restriction Termination Date, the Company agrees that it shall, during any
period in which it is not subject to Section 13 or 15(d) under the
Exchange Act, upon the request of any Holder or beneficial holder of the
Securities, make available to such Holder or beneficial holder of Securities or
any Common Stock issued upon conversion thereof which continue to be Restricted
Securities in connection with any sale thereof and any prospective purchaser of
Securities or such Common Stock designated by such Holder or beneficial holder,
the information required pursuant to Rule 144A(d)(4) under the
Securities Act and it will take 


 


52

















 


such
further action as any Holder or beneficial holder of such Securities or such
Common Stock may reasonably request, all to the extent required from time to
time to enable such Holder or beneficial holder to sell its Securities or
Common Stock without registration under the Securities Act within the
limitation of the exemption provided by Rule 144A, as such Rule may
be amended from time to time.


 


Section 5.07.          Stay, Extension And Usury Laws.


 


The Company covenants (to
the extent that they may lawfully do so) that it shall not at any time insist
upon, plead, or in any manner whatsoever claim or take the benefit or advantage
of, any stay, extension or usury law or other law which would prohibit or
forgive the Company from paying all or any portion of the principal of or accrued
but unpaid interest (including Additional Interest and Special Interest (or
both), if any) on the Securities as contemplated herein, wherever enacted, now
or at any time hereafter in force, or which may affect the covenants or the
performance of this Indenture, and the Company (to the extent it may lawfully
do so) hereby expressly waives all benefit or advantage of any such law and
covenants that it will not, by resort to any such law, hinder, delay or impede
the execution of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law had been
enacted.


 


Section 5.08.          Payment of Additional Interest.


 


If Additional Interest or
Special Interest (or both) is payable by the Company pursuant to the terms of
the Securities and this Indenture, the Company shall deliver to the Trustee an
Officer’s Certificate to that effect stating (i) the amount of such
Additional Interest and/or Special Interest that is payable, (ii) the
reason why such Additional Interest and/or Special Interest is payable and (iii) the
date on which such Additional Interest and/or Special Interest is payable.  Unless and until a Trust Officer of the
Trustee receives such a certificate, the Trustee may assume without inquiry
that no such Additional Interest or Special Interest is payable.  If the Company has paid Additional Interest
and/or Special Interest directly to the Persons entitled to such Additional
Interest and/or Special Interest, the Company shall deliver to the Trustee a certificate
setting forth the particulars of such payment.


 


Section 5.09.          Maintenance of Office or Agency.


 


The Company shall maintain
an office or agency where Securities may be presented or surrendered for
payment.  The Company also will maintain
an office or agency where Securities may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities and this Indenture may be served.  The office of the Trustee, at its Corporate
Trust Office, will be such office or agency of the Company, unless the Company
shall designate and maintain some other office or agency for one or more of
such purposes.  The Company will give
prompt written notice to the Trustee of the location and any change in the
location of any such offices or agencies. 
If at any time the Company shall fail to maintain any such required
offices or agencies or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the office of the Trustee and the Company hereby appoints the Trustee
as its agent to receive all such presentations, surrenders, notices and
demands.


 


53

















 


The Company may from time to
time designate one or more other offices or agencies (in or outside of The City
of New York) where the Securities may be presented or surrendered for any or
all such purposes, and may from time to time rescind such designation.  The Company will give prompt written notice
to the Trustee of any such designation or rescission and any change in the
location of any such office or agency.


 


ARTICLE 6


 


CONSOLIDATION; MERGER; SALE OF ASSETS


 


Section 6.01.          Company May Consolidate, Etc.,
Only on Certain Terms.


 


(a)           The Company shall not consolidate
with or merge with or into any other Person and the Company shall not sell,
convey, assign, transfer, lease or otherwise dispose of all or substantially
all of the Company’s assets to any Person in a single transaction or series of
related transactions, unless:


 


(1)           the
person formed by such consolidation or into which the Company is merged or the
Person which acquires by conveyance or transfer, or which leases all or
substantially all of the properties and assets of the Company, shall be a
corporation organized and validly existing under the laws of the United States
of America or any State thereof or the District of Columbia, and shall,,
expressly assume by a supplemental indenture, the due and punctual payment of
the principal of, and interest on, including Additional Interest and Special
Interest, if any, on all the Securities and the performance and observance of
every covenant of this Indenture to be performed or observed on the part of the
Company;


 


(2)           immediately
after giving effect to the transaction, no Default or Event of Default shall
have occurred and be continuing; and


 


(3)           the
Company shall have, at or prior to the effective date of such consolidation or
merger or sale, conveyance, assignment, transfer, lease or other disposition,
delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel,
each stating that such consolidation, or merger or sale, conveyance,
assignment, transfer, lease or other disposition complies with this Article 6.01
and, if a supplemental indenture is required in connection with such
transaction, such supplemental indenture complies with this Article, and that
all conditions precedent herein provided for relating to such transaction have
been complied with.


 


Section 6.02.          Successor Substituted.


 


Upon any consolidation of
the Company with, or merger of the Company into, any other Person or any sale,
conveyance, assignment, transfer, lease or other disposition of all or
substantially all of the Company’s assets in accordance with Section 6.01,
the successor Person formed by such consolidation or into which the Company is
merged or to which such sale, conveyance, assignment, transfer, lease or other
disposition is made shall succeed to, and be substituted for, and may exercise
every right and power of, the Company under this Indenture with the same effect
as if such successor Person had been named as the Company herein, and 


 


54

















 


thereafter,
except in the case of a lease, the predecessor Person shall be relieved of all
obligations and covenants under this Indenture and the Securities.


 


ARTICLE 7


 


DEFAULT AND REMEDIES


 


Section 7.01.          Events of Default.


 


(a)           An “Event of Default” wherever
used herein, means any one of the following events (whatever the reason for
such Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or
governmental body):


 


(1)           a
default in the payment of the principal amount, Redemption Price, Repurchase
Price or Fundamental Change Purchase Price with respect to any Security when
such payment becomes due and payable; or


 


(2)           a
default for 30 days in the payment of any interest (including Additional
Interest and Special Interest, if any) on the Securities; or


 


(3)           a
failure by the Company to comply with its obligation to convert the Securities
in accordance with the Indenture upon exercise of any Holder’s conversion
rights;


 


(4)           failure
by the Company to provide an Fundamental Change Company Notice within the time
required to provide such notice as set forth in Section 3.08(b) hereof;
or


 


(5)           failure
to redeem any Securities called for redemption after the Company has exercised
its option to redeem such Securities;


 


(6)           failure
to purchase all or any part of the Securities in accordance with Sections 3.07
and 3.08 hereof;


 


(7)           failure
to perform or observe any other covenant or agreement in this Indenture with
respect to the Securities (other than a covenant or agreement in respect of
which the Company’s non-compliance would otherwise be an event of default) and
such default or breach continues for a period of 60 consecutive days after
written notice to the Company by the Trustee or to the Company and the Trustee
by the Holder of 25% or more in aggregate principal amount of the Securities
then Outstanding;


 


(8)           an
event of default as defined in any mortgage, indenture or instrument under
which there may be issued, or by which there may be secured or evidenced, any
indebtedness of the Company or any of its Subsidiaries for money borrowed in
excess of $15 million, whether such indebtedness now exists or shall hereafter
be created, shall happen and shall result in such indebtedness becoming or
being declared due and payable prior to the date on which it would otherwise
become due and payable, and such 


 


55

















 


acceleration shall not be rescinded or annulled, or such indebtedness shall
not have been discharged, within a period of 10 days after there shall have
been given to the Company by the Trustee or to the Company and the Trustee by
the Holders of at least 25% in principal amount of the Securities then
Outstanding, a written notice specifying such event of default and requiring
that such acceleration be rescinded or annulled or such indebtedness to be
discharged;


 


(9)           a
final judgment for the payment of $15 million or more (excluding any amounts
covered by insurance) rendered against the Company or any Significant
Subsidiary of the Company, which judgment is not discharged or stayed within 60
days after (i) the date on which the right to appeal or petition for
review thereof has expired if no such appeal or review has commenced, or (ii) the
date on which all rights to appeal or petition for review have been
extinguished;


 


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


 


(A)          commences
a voluntary insolvency proceeding;


 


(B)           consents
to the entry of an order for relief against it in an involuntary insolvency
proceeding or consents to its dissolution or winding-up;


 


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


 


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


 


or
takes any comparable action under any foreign laws relating to insolvency; provided, however,
that the liquidation of any Subsidiary into another Subsidiary, other than as
part of a credit reorganization, shall not constitute an Event of Default under
this Section 7.01(a)(10); or


 


(11)         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 of the Company in
an involuntary insolvency proceeding;


 


(B)           appoints
a custodian of the Company or any Significant Subsidiary of the Company for any
substantial part of their property;


 


(C)           orders
the winding-up, liquidation or dissolution of the Company or any Significant
Subsidiary of the Company;


 


(D)          orders
the presentation of any plan or arrangement, compromise or reorganization of
the Company or any Significant Subsidiary of the Company; or


 


(E)           grants
any similar relief under any foreign laws;


 


56

















 


and
in each such case the order or decree remains unstayed and in effect for 90
days.


 


(b)           Notwithstanding Section 7.01(a) no Event of
Default under clause (8) of Section 7.01(a) shall occur
until the Trustee notifies the Company in writing, or the Holders of at least
25% in aggregate principal amount of the Securities then Outstanding notify the
Company and the Trustee in writing, of the Default (a “Notice of Default”),
and the Company does not cure the Default within the time specified in
clause (5) of Section 7.01(a), or obtain a waiver, after receipt
of such notice.  A notice given pursuant
to this Section 7.01 shall be given by registered or certified mail, must
specify the Default, demand that it be remedied and state that the notice is a
Notice of Default.  When any Default
under this Section 7.01 is cured, it ceases.


 


(c)           The Company will deliver to the Trustee, within 30 days
after becoming aware of the occurrence of a Default or Event of Default, written
notice thereof.


 


Section 7.02.          Acceleration; Special Interest.


 


If
an Event of Default (other than an Event of Default specified in clause (10) or
(11) of Section 7.01(a)) shall occur and be continuing with respect to
this Indenture, the Trustee or the Holders of not less than 25% in aggregate
principal amount of the Securities then Outstanding may, and the Trustee at the
request of such Holders shall, declare all unpaid principal of and accrued
interest (including Additional Interest and Special Interest), if any, on all
Securities through the date of such declaration to be due and payable, by a
notice in writing to the Company (and to the Trustee if given by the Holders of
the Securities).  Upon any such declaration,
such principal and interest (including Additional Interest and Special
Interest), if any, shall become due and payable immediately.  If an Event of Default specified in
clause (10) or (11) of Section 7.01(a) occurs and is
continuing, then all the Securities shall ipso facto become and be due and
payable immediately in an amount equal to the principal amount of the
Securities, together with accrued and unpaid interest (including Additional
Interest and Special Interest), if any, to the date the Securities become due
and payable, without any declaration or other act on the part of the Trustee or
any Holder.  Thereupon, the Trustee may,
at its discretion, proceed to protect and enforce the rights of the Holders of
the Securities by appropriate judicial proceedings.


 


After
a declaration of acceleration with respect to the Securities, but before a
judgment or decree for payment of the money due has been obtained by the
Trustee as hereinafter in this Article provided, the Holders of a majority
in aggregate principal amount of the Securities Outstanding, by written notice
to the Company and the Trustee, may rescind and annul such declaration and its
consequences if:


 


(a)           the Company has paid or deposited
with the Trustee a sum sufficient to pay


 


(1)           all
sums paid or advanced by the Trustee under this Indenture and the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel,


 


(2)           all
overdue interest (including Additional Interest and Special Interest), if any,
on all Outstanding Securities,


 


57
















 


(3)                                  the principal of any
Outstanding Securities which have become due otherwise than by such declaration
of acceleration and interest (including Additional Interest and Special
Interest) thereon at the rate borne by the Securities, and


 


(4)                                  to the extent that payment
of such interest is lawful, interest upon overdue interest at the rate borne by
the Securities;


 


(b)                                 the rescission
would not conflict with any judgment or decree of a court of competent
jurisdiction; and


 


(c)                                  all Defaults or
Events of Default, other than the non-payment of principal of and interest on
the Securities which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 7.13.  No such rescission shall affect any
subsequent Default or impair any right consequent thereon.


 


Notwithstanding the
foregoing, except as provided in Section 7.16, to the extent elected by
the Company, the sole remedy for an Event of Default relating to the failure by
the Company to comply with the provisions of Section 5.02 of this
Indenture and for any failure to comply with Section 314(a)(1) of the
Trust Indenture Act shall, for the first 180 days after the occurrence of
such an Event of Default, consist exclusively of the right to receive special
interest (“Special Interest”) on the Securities at an annual rate equal
to 0.50% of the principal amount of the Securities.  Such Special Interest shall be paid
semi-annually in arrears, with the first semi-annual payment due on the first
Interest Payment Date following the date on which such Special Interest began
to accrue on the Securities.  Special
Interest shall accrue on all Outstanding Securities from and including the date
on which an Event of Default relating to a failure to comply with the
provisions of Section 5.02 or failure to comply with Section 314(a)(1) of
the Trust Indenture Act shall first occur to but not including the 180th day
thereafter (or such earlier date on which such Event of Default shall have been
cured or waived by Holders of a majority in principal amount of the Outstanding
Securities).  On such 180th day (or
earlier, if the Event of Default relating to the failure to comply with Section 5.02
and failure to comply with Section 314(a)(1) of the Trust Indenture
Act is cured or waived prior to such 180th day), such Special Interest shall
cease to accrue and, if the Event of Default relating to the failure to comply
with Section 5.02 and failure to comply with Section 314(a)(1) of
the Trust Indenture Act shall not have been cured or waived prior to such 180th
day, the Securities shall be subject to acceleration as provided in this Section 7.02.  The provisions of this paragraph shall not
affect the rights of Holders in the event of the occurrence of any other Event
of Default.  In the event the Company
shall not elect to pay Special Interest upon an Event of Default resulting from
the failure of the Company to comply with the provisions of Section 5.02
and for any failure by it to comply with Section 314(a)(1) of the
Trust Indenture Act, the Securities shall be subject to acceleration as
provided above in this Section 7.02.


 


If the Company shall elect
to pay Special Interest in connection with an Event of Default relating to its
failure to comply with the requirements of Section 5.02 and for any failure
by it to comply with Section 314(a)(1) of the Trust Indenture Act, (1) the
Company shall notify all Holders and the Trustee and Paying Agent of such
election on or before the close of business on the Business Day immediately
preceding the day on which such Event of Default shall first 


 


58

















 


occur,
and (2) all references herein to interest accrued or payable as of any
date shall include any Special Interest accrued or payable as of such date as
provided in this Section 7.02.


 


Section 7.03.                             Collection of
Indebtedness and Suits for Enforcement by Trustee.


 


The
Company covenants that if:


 


(a)                                  default is made
in the payment of any interest (including Additional Interest and Special
Interest), if any, on any Security when such interest becomes due and payable
and such default continues for a period of 30 days, or


 


(b)                                 default is made
in the payment of the principal of any Security at the Stated Maturity thereof, 


 


the
Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and interest (including Special Interest, if any),
with interest upon the overdue principal and, to the extent that payment of
such interest shall be legally enforceable, upon overdue installments of
interest, at the rate borne by the Securities; and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.


 


If the Company fails to pay
such amounts forthwith upon such demand, the Trustee, in its own name and as
trustee of an express trust, may institute a judicial proceeding for the
collection of the sums so due and unpaid and may prosecute such proceeding to
judgment or final decree, and may enforce the same against the Company or any
other obligor upon the Securities and collect the moneys adjudged or decreed to
be payable in the manner provided by law out of the property of the Company or
any other obligor upon the Securities, wherever situated.


 


If an Event of Default
occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders under this Indenture by
such appropriate private or judicial proceedings as the Trustee shall deem most
effectual to protect and enforce such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy,
subject however to Section 7.12.  No
recovery of any such judgment upon any property of the Company shall affect or
impair any rights, powers or remedies of the Trustee or the Holders.


 


Section 7.04.                             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 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 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
overdue principal or interest) shall be entitled and empowered, by intervention
in such proceeding or otherwise,


 


59

















 


(a)                                  to file and
prove a claim for the whole amount of principal and interest (including Special
Interest, if any) owing and unpaid in respect of the Securities 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) 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 8.07.


 


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 7.05.                             Trustee May Enforce
Claims Without Possession of Securities.


 


All rights of action and
claims under this Indenture or the Securities may be prosecuted and enforced by
the Trustee without the possession of any of the Securities or the production
thereof in any proceeding relating thereto, and any such proceeding instituted
by the Trustee shall be brought in its own name and as trustee of an express
trust, and any recovery of judgment shall, after provision for the payment of
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, be for the ratable benefit of the Holders of
the Securities in respect of which such judgment has been recovered.


 


Section 7.06.                             Application of
Money Collected.


 


Any money collected by the
Trustee pursuant to this Article 7 or otherwise on behalf of the Holders
or the Trustee pursuant to this Article 7 or through any proceeding or any
arrangement or restructuring in anticipation or in lieu of any proceeding
contemplated by this Article 7 and any money or other property
distributable in respect of the Company’s obligations under this Indenture
after an Event of Default shall be applied, subject to applicable law, in the
following order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal or interest, upon
presentation of the Securities and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:


 


FIRST:  To the payment of all amounts due the Trustee
(or any predecessor trustee) under Section 8.07;


 


SECOND:  To the payment of the amounts then due and
unpaid upon the Securities for principal and interest (including Additional
Interest and Special Interest, if any), in respect of which or for the benefit
of which such money has been collected, ratably, without preference or 


 


60

















 


priority
of any kind, according to the amounts due and payable on such Securities for
principal and interest (including Additional Interest and Special Interest, if
any); and


 


THIRD:  The balance, if any, to the Person or Persons
entitled thereto, including the Company, provided that all sums due and owing
to the Holders and the Trustee have been paid in full as required by this
Indenture.


 


Section 7.07.                             Limitation on
Suits.


 


Subject to Section 7.08,
no Holder of any Securities shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture or the Securities, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless


 


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


 


(b)                                 the Holders of
not less than 25% in aggregate principal amount of the Outstanding Securities
shall have made written request to the Trustee to institute proceedings in
respect of such Event of Default in its own name as trustee hereunder;


 


(c)                                  such Holder or
Holders have offered to the Trustee security or indemnity satisfactory to the
Trustee against any loss, liability or expense (including fees and expenses of
its counsel) to be incurred in compliance with such request;


 


(d)                                 the Trustee has
failed to institute the proceeding and has not received direction inconsistent
with the original request from the Holders of a majority in principal amount of
the Outstanding Securities within 60 days after the original request;


 


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


 


Section 7.08.                             Unconditional
Right of Holders to Receive Payment and to Convert.


 


Notwithstanding any other
provision of this Indenture, the right of any Holder of a Security to receive
payment of the principal amount, accrued and unpaid interest, if any,
Redemption Price, Repurchase Price, Fundamental Change Purchase Price,
Additional Interest, if any, or Special Interest, if any, in respect of the
Securities held by such Holder, on or after the respective due dates expressed
in the Securities and this Indenture (whether upon repurchase or otherwise),
and to convert such Security in accordance with Article 4, and to bring
suit for the enforcement of any such payment on or after such respective due
dates or for the right to convert in accordance with Article 4, is
absolute and unconditional and shall not be impaired or affected without the
consent of the Holder.


 


61

















 


Section 7.09.                             Restoration of
Rights and Remedies.


 


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


 


Section 7.10.                             Rights and
Remedies Cumulative.


 


No right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to
the extent permitted by law, be cumulative and in addition to every other right
and remedy given hereunder or now or hereafter existing at law or in equity or
otherwise.  The assertion or employment
of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.


 


Section 7.11.                             Delay or
Omission Not Waiver.


 


No delay or omission of the
Trustee or of any Holder of any Security to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence
therein.  Every right and remedy given by
this Article 7 or by law to the Trustee or to the Holders may be exercised
from time to time, and as often as may be deemed expedient, by the Trustee or
by the Holders, as the case may be.


 


Section 7.12.                             Control by
Holders.


 


The
Holders of not less than a majority in aggregate principal amount of the
Outstanding Securities shall have the right to direct the time, method and
place of conducting any proceeding for exercising any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee, provided
that:


 


(a)                                  such direction
shall not be in conflict with any rule of law or with this Indenture,
expose the Trustee to personal liability or expenses for which the Trustee has
not received adequate indemnity as determined by it in good faith or be unduly
prejudicial to Holders not joining therein; and


 


(b)                                 subject to the
provisions of Section 315 of the TIA, the Trustee may take any other action
deemed proper by the Trustee which is not inconsistent with such direction.


 


Section 7.13.                             Waiver of Past
Defaults.


 


Subject to Section 7.08,
the Holders of a majority in aggregate principal amount of the Securities then
Outstanding by notice to the Trustee may waive an existing Default or Event of
Default and its consequences, except an uncured Default or Event of Default in
the payment of 


 


62

















 


the
principal of or any accrued but unpaid interest (including Additional Interest
and Special Interest) on any Security, an uncured failure by the Company to
convert any Securities into Common Stock and cash, as applicable, or any
Default or Event of Default in respect of any provision of this Indenture or
the Securities which, under Section 10.02, cannot be modified or amended
without the consent of the Holder of each Security affected.  When a Default or Event of Default is waived,
it is cured and ceases to exist.


 


Section 7.14.                             Undertaking for
Costs.


 


All parties to this
Indenture agree, and each Holder of any Security by his acceptance thereof
shall be deemed to have agreed, that any court may in its discretion require,
in any suit for the enforcement of any right or remedy under this Indenture, or
in any suit against the Trustee for any action taken, suffered or omitted by it
as Trustee, the filing by any party litigant in such suit of an undertaking to
pay the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys’ fees, against any party
litigant in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant, but the provisions of this Section shall
not apply to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in
principal amount of the Outstanding Securities, or to any suit instituted by
any Holder for the enforcement of the payment of the principal of or interest
(including Additional Interest and Special Interest, if any) on, any Security
on or after the respective Stated Maturities expressed in such Security (or, in
the case of purchase pursuant to Article 3 hereof, on the Specified
Repurchase Date or the Fundamental Change Purchase Date, as the case may be).


 


Section 7.15.                             Remedies
Subject to Applicable Law.


 


All rights, remedies and
powers provided by this Article 7 may be exercised only to the extent that
the exercise thereof does not violate any applicable provision of law in the
premises, and all the provisions of this Indenture are intended to be subject
to all applicable mandatory provisions of law which may be controlling in the
premises and to be limited to the extent necessary so that they will not render
this Indenture invalid, unenforceable or not entitled to be recorded,
registered or filed under the provisions of any applicable law.


 


Section 7.16.                             Additional Interest


 


(a) If:


 


(i)                                     at any time
during the six-month period beginning on, and including, the date which is six
months after the last date on which any Securities are originally issued under
this Indenture, (A) the Company fails to timely file any document or
report that it is required to file with the SEC pursuant to Section 13 or
15(d) of the Exchange Act, as applicable (after giving effect to all
applicable grace periods thereunder and other than reports on Form 8-K),
or (B) the Securities are not otherwise freely tradable by Holders who are
not Affiliates of the Company (as a result of restrictions pursuant to U.S.
securities law or the terms of this Indenture or the Securities), or


 


63

















 


(ii)                                  as of the date
that is one year after the last date on which any Securities are originally
issued under this Indenture, the Restrictive Legend on the Securities has not
been removed or the Securities are not otherwise freely tradable by Holders who
are not Affiliates of the Company (without restrictions pursuant to U.S.
securities law or the terms of this Indenture or the Securities) (each such
event referred to in clauses (i) and (ii), a “Restricted Transfer
Default”),


 


and the Company has not
cured any such Restricted Transfer Default by the date that is 14 calendar days
following the occurrence of such Restricted Transfer Default (such date, the “Restricted
Transfer Triggering Date”), then the Company will be required to pay
Additional Interest in cash on the Securities. 
Additional Interest on the Securities will accrue with respect to the
first 90-day period (or portion thereof) following the Restricted Transfer
Triggering Date for each day that a Restricted Transfer Default is continuing
at a rate equal to 0.25% per annum of the principal amount of Securities, which
rate will increase by an additional 0.25% per annum of the principal amount of
the Securities for each subsequent 90-day period (or portion thereof) while a
Restricted Transfer Default is continuing until all Restricted Transfer
Defaults have been cured, up to a maximum of 0.50% of the principal amount of
the Securities.  Following the cure of
all Restricted Transfer Defaults, the accrual of Additional Interest arising
from Restricted Transfer Defaults will cease.


 


(b)                                 Additional
Interest payable in accordance with Sections 7.16(a) shall be payable
in arrears on each Interest Payment Date for the Securities following accrual
in the same manner as regular interest on the Securities.


 


(c)                                  Notwithstanding
the foregoing, if the Restrictive Legend on the Securities has not been removed
pursuant to Section 2.18 or the Securities are not otherwise freely
tradable by Holders other than the Company’s Affiliates (as a result of
restrictions pursuant to U.S. securities law or the terms of this Indenture or
the Securities), the Company shall have the right to designate an effective
shelf registration statement for the resale by the Holders of the Securities or
holders of any shares of Common Stock issuable upon conversion of the
Securities.  Additional Interest shall
not accrue for each day on which such registration statement remains effective
and usable by Holders for the resale of the Securities or any shares of Common
Stock.  Any such registration shall be
effected on terms customary for convertible securities generally offered in
reliance upon Rule 144A under the Securities Act.


 


(d)                                 During the
period of one year after the last date on which any of the Securities are
originally issued, the Company will not, and will not permit any of its “affiliates”
(as defined in Rule 144 under the Securities Act) to, resell any of the
Securities that have been reacquired by any of them.


 


ARTICLE 8


 


TRUSTEE


 


Section 8.01.                             Duties of
Trustee.


 


(a)                                  In case an
Event of Default has occurred and is continuing, the Trustee shall exercise
such of the rights and powers vested in it by this Indenture, and use the same
degree of 


 


64

















 


care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
his own affairs;


 


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


 


(1)                                  the Trustee undertakes to
perform those duties and only those duties as are specifically set forth in
this Indenture, and no implied covenants or obligations shall be read into this
Indenture against the Trustee; 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
certificates or opinions furnished to the Trustee and conforming to the requirements
of this Indenture.  However, in the case
of any such certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee shall be
under a duty to examine the same to determine whether or not they conform to
the requirements of this Indenture (but need not confirm or investigate the
accuracy of mathematical calculations or other facts stated therein).


 


(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 clause (c) does
not limit the effect of clauses (b) or (d) of this Section 8.01;


 


(2)                                  the Trustee shall not be
liable for any error of judgment made in good faith by a Trust 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 of the Holders of a majority in principal amount of
Outstanding Securities relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee under this Indenture;


 


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


 


(e)                                  Whether or not
therein expressly so provided, every provision of this Indenture that in any
way relates to the Trustee is subject to clauses (a), (b), (c), (d) and
(f) of this Section 8.01; and


 


65

















 


(f)                                    The Trustee
shall not be liable for interest on any money or assets received by it except
as the Trustee may agree with the Company. 
Assets held in trust by the Trustee need not be segregated from other
assets except to the extent required by law.


 


Section 8.02.                             Notice of
Default.


 


Within 90 days after the
occurrence of any Default, the Trustee shall transmit by mail to all Holders
and any other Persons entitled to receive reports pursuant to Section 313(c) of
the TIA, as their names and addresses appear in the Security Register, notice
of such Default hereunder known to the Trustee, unless such Default shall have
been cured or waived; provided, however, that, except in the case of a Default in the
payment of the principal of or interest on any Security, the Trustee shall be
protected in withholding such notice if and so long as a trust committee of
Trust Officers of the Trustee in good faith determines that the withholding of
such notice is in the interest of the Holders.


 


Section 8.03.                             Certain Rights
of Trustee.


 


Subject
to the provisions of Section 8.01 hereof:


 


(a)                                  the Trustee may
conclusively rely and shall be fully protected in acting or refraining from
acting upon receipt by it of 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;


 


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


 


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


 


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


 


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


 


(f)                                    the Trustee
shall not be bound to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, approval, appraisal, bond, debenture, note,
coupon, security or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or 


 


66

















 


investigation into such facts or matters as
it may deem 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;


 


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


 


(h)                                 the Trustee
shall not be charged with knowledge of any Default or Event of Default with
respect to the Securities unless either (i) a Trust Officer of the Trustee
shall have actual knowledge of such Default or Event of Default or (ii) written
notice of such Default or Event of Default shall have been given to the Trustee
by the Issuer or by any Holder of Securities;


 


(i)                                     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, conclusively rely
upon an Officer’s Certificate;


 


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


 


(k)                                  the permissive
rights of the Trustee enumerated herein shall not be construed as duties of the
Trustee;


 


(l)                                     the Trustee may
request that the Company deliver an Officer’s 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 Officer’s Certificate may
be signed by any person authorized to sign an Officer’s Certificate, including
any person specified as so authorized in any such certificate previously
delivered and not superseded;


 


(m)                               the Trustee may
employ or retain such counsel, accountants, appraisers or other experts or
advisers as it may reasonably require for the purpose of determining and
discharging its rights and duties hereunder and shall not be responsible for
any misconduct or negligence on the part of any of them selected by the Trustee
using due care;


 


(n)                                 the Trustee
shall not be required to give any note, bond or surety in respect of the
execution of the trusts and powers under this Indenture;


 


(o)                                 the Trustee
shall not be responsible or liable for any failure or delay in the performance
of its obligations under this Indenture arising out of or caused, directly or
indirectly, by circumstances beyond its reasonable control, including, without
limitation, acts of God, earthquakes, fire, flood, terrorism, wars and other
military disturbances, sabotage, epidemics,


 


67
















 


riots, interruptions, losses or malfunctions
of utilities, computers (hardware or software) or communications services,
labor disputes, acts of civil or military authorities and governmental action;
and


 


(p)                              in no
event shall the Trustee be responsible or liable for special, indirect, or
consequential loss or damage of any kind whatsoever (including, but not limited
to, loss of profit) irrespective of whether the Trustee has been advised of the
likelihood of such loss or damage and regardless of the form of action.


 


Section 8.04.                             Trustee Not
Responsible for Recitals, Dispositions of Securities or Application of Proceeds
Thereof.


 


The recitals contained
herein and in the Securities, except the Trustee’s certificates of
authentication, shall be taken as the statements of the Company, and the
Trustee assumes no responsibility for their correctness.  The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities.  The Trustee shall not be accountable for the
use or application by the Company of Securities or the proceeds thereof.


 


Section 8.05.                             Trustee and
Agents May Hold Securities; Collections; etc.


 


The Trustee, any Paying
Agent, Registrar, Conversion Agent or any other agent of the Company, in its
individual or any other capacity, may become the owner or pledgee of
Securities, with the same rights it would have if it were not the Trustee,
Paying Agent, Registrar, Conversion Agent or such other agent and, subject to
TIA Sections 310 and 311, may otherwise deal with the Company and receive,
collect, hold and retain collections from the Company with the same rights it
would have if it were not the Trustee, Paying Agent, Registrar, Conversion
Agent or such other agent.


 


Section 8.06.                             Money Held in
Trust.


 


All moneys received by the
Trustee shall, until used or applied as herein provided, be held in trust for
the purposes for which they were received, but need not be segregated from
other funds except to the extent required by mandatory provisions of law.


 


Section 8.07.                             Compensation
and Indemnification of Trustee and Its Prior Claim.


 


The Company covenants and
agrees to pay to the Trustee from time to time, and the Trustee shall be
entitled to, such compensation as the parties shall agree in writing from time
to time for all services rendered by it hereunder (which compensation shall not
be limited by any provision of law in regard to the compensation of a trustee
of an express trust) and the Company covenants and agrees to pay or reimburse
the Trustee and each predecessor Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by or on behalf of the
Trustee in accordance with any of the provisions of this Indenture (including
the reasonable compensation and the expenses and disbursements of its counsel
and of all agents and other persons not regularly in its employ) except any
such expense, disbursement or advance as may arise from its negligence, bad
faith or willful misconduct.  The Company
also covenants and agrees to indemnify the Trustee and each predecessor Trustee
for, and to hold it harmless against, any claim, loss, liability, tax,
assessment or other governmental charge (other than taxes 


 


68

















 


applicable
to the Trustee’s compensation hereunder) or expense incurred without gross
negligence or willful misconduct on its part, arising out of or in connection
with the acceptance or administration of this Indenture or the trusts hereunder
and its duties hereunder, including enforcement of this Section 8.07 and
also including any liability which the Trustee may incur as a result of failure
to withhold, pay or report any tax, assessment or other governmental charge,
and the costs and expenses of defending itself against or investigating any
claim or liability in connection with the exercise or performance of any of its
powers or duties hereunder.  The
obligations of the Company under this Section 8.07 to compensate and
indemnify the Trustee and each predecessor Trustee and to pay or reimburse the
Trustee and each predecessor Trustee for reasonable expenses, disbursements and
advances shall constitute an additional obligation hereunder and, together with
the lien referred in the next sentence, shall survive the satisfaction and
discharge, and termination for any reason, of this Indenture and the
resignation or removal of the Trustee and each predecessor Trustee.  To secure the Company’s obligations in this Section 8.07,
the Trustee shall have a lien prior to the Securities on all money and property
held or collected by the Trustee, other than money or property held in trust
for the payment of principal of or interest on particular Securities.


 


“Trustee” for purposes of
this Section shall include any predecessor Trustee; provided, however,
that the negligence, willful misconduct or bad faith of any Trustee hereunder
shall not affect the rights of any other Trustee hereunder.


 


Without prejudice to its
other rights hereunder, when the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 7.01(a)(7) or
Section 7.01(a)(8), the expenses (including the reasonable charges and
expenses of its counsel) and the compensation for the services are intended to
constitute expenses of administration under any applicable Federal or State
bankruptcy, insolvency or other similar law.


 


Section 8.08.                             Conflicting
Interests.


 


The Trustee shall comply
with the provisions of Section 310(b) of the TIA provided, however,
that there shall be excluded from the operation of Section 310(b)(1) of
the TIA any indenture or indentures under which other securities or
certificates of interest or participation in other securities of the Company
are outstanding if the requirements for such exclusion set forth in TIA §310(b)(1) are
met.


 


Section 8.09.                             Trustee
Eligibility.


 


There shall at all times be
a Trustee hereunder which shall be eligible to act as trustee under TIA Section 310(a) and
which shall have a combined capital and surplus of at least $50,000,000, to the
extent there is an institution eligible and willing to serve.  If the Trustee does not have a Corporate
Trust Office in The City of New York, the Trustee may appoint an agent in The
City of New York reasonably acceptable to the Company to conduct any activities
which the Trustee may be required under this Indenture to conduct in The City
of New York.  If such Trustee 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 8.09, 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 


 


69

















 


so
published.  If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section 8.09,
the Trustee shall resign immediately in the manner and with the effect
hereinafter specified in this Article 8.


 


Section 8.10.                             Resignation and
Removal; Appointment of Successor Trustee.


 


(a)                                  No resignation
or removal of the Trustee and no appointment of a successor trustee pursuant to
this Article 8 shall become effective until the acceptance of appointment
by the successor trustee under Section 8.11.


 


(b)                                 The Trustee, or
any trustee or trustees hereafter appointed, may at any time resign by giving
written notice thereof to the Company. 
Such resignation shall take effect upon the appointment of a successor
Trustee and the acceptance of such appointment by such successor Trustee.  If the instrument of acceptance by a
successor Trustee required by Section 8.11 shall not have been delivered
to the Trustee within 30 days after the giving of such notice of resignation or
of any removal of the Trustee as hereinafter provided, the resigning or removed
Trustee may at the Company’s expense petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities.


 


(c)                                  The Trustee may
be removed at any time for any cause or for no cause by an Act of the Holders
of not less than a majority in aggregate principal amount of the Outstanding
Securities, delivered to the Trustee and to the Company.


 


(d)                                 If at any time:


 


(1)                                  the Trustee shall fail to
comply with the provisions of TIA Section 310(b) after written
request therefor by the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months,


 


(2)                                  the Trustee shall cease to
be eligible under Section 8.09 and shall fail to resign after written
request therefor by the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months, or


 


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


 


then, in any case, (i) the
Company may remove the Trustee, or (ii) subject to Section 7.14, the
Holder of any Security who has been a bona fide Holder of a Security for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor trustee. 
Such court may thereupon, after such notice, if any, as it may deem
proper and prescribe, remove the Trustee and appoint a successor trustee.


 


(e)                                  If the Trustee
shall be removed or become incapable of acting, or if a vacancy shall occur in
the office of Trustee for any cause, the Company shall promptly appoint a
successor trustee and shall comply with the applicable requirements of Section 8.11.  If, within 


 


70

















 


60 days after such removal or incapability,
or the occurrence of such vacancy, the Company has not appointed a successor
Trustee, a successor trustee shall be appointed by the Act of the Holders of a
majority in principal amount of the Outstanding Securities delivered to the
Company and the retiring Trustee.  Such
successor trustee so appointed shall forthwith upon its acceptance of such
appointment become the successor trustee. 
If no successor trustee shall have been so appointed by the Company or
the Holders of the Securities and accepted appointment in the manner
hereinafter provided, the Trustee or the Holder of any Security who has been a
bona fide Holder for at least six months may, subject to Section 7.14, on
behalf of himself and all others similarly situated, petition at the expense of
the Company any court of competent jurisdiction for the appointment of a
successor trustee.


 


(f)                                    The Company
shall give notice of each resignation and each removal of the Trustee and each
appointment of a successor trustee by mailing written notice of such event by
first-class mail, postage prepaid, to the Holders of Securities as their names
and addresses appear in the register of the Registrar.  Each notice shall include the name of the
successor trustee and the address of its Corporate Trust Office or agent
hereunder.


 


Section 8.11.                             Acceptance of
Appointment by Successor.


 


(a)                                  Every successor
trustee appointed hereunder shall execute, acknowledge and deliver to the Company
and to the retiring Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee as if originally named as Trustee hereunder; but,
nevertheless, on the written request of the Company or the successor trustee,
upon payment of its charges pursuant to Section 8.07 then unpaid, such
retiring Trustee shall pay over to the successor trustee all moneys at the time
held by it hereunder, subject nevertheless to its lien provided for in Section 8.07,
and shall execute and deliver an instrument transferring to such successor trustee
all such rights, powers, trusts and duties. 
Upon request of any such successor trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor trustee all such rights and powers.


 


(b)                                 No successor
trustee with respect to the Securities shall accept appointment as provided in
this Section 8.11 unless at the time of such acceptance such successor
trustee shall be eligible to act as trustee under the provisions of TIA Section 310(a) and
this Article 8 and shall have a combined capital and surplus of at least
$50,000,000 and have a Corporate Trust Office or an agent selected in
accordance with Section 8.09.


 


(c)                                  Upon acceptance
of appointment by any successor trustee as provided in this Section 8.11,
the Company shall give notice thereof to the Holders of the Securities, by
mailing such notice to such Holders at their addresses as they shall appear on
the Security Register.  If the acceptance
of appointment is substantially contemporaneous with the appointment, then the
notice called for by the preceding sentence may be combined with the notice
called for by Section 8.10.  If the
Company fails to give such notice within 10 days after acceptance of
appointment by the successor trustee, the successor trustee shall cause such
notice to be given at the expense of the Company.


 


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Section 8.12.                             Merger,
Conversion, Consolidation or Succession to Business.


 


Any Person into which the
Trustee may be merged or converted or with which it may be consolidated, or any
Person resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any Person succeeding to all or substantially all
of the corporate trust business of the Trustee (including the trust created by
this Indenture) shall be the successor of the Trustee hereunder, provided that such Person shall be eligible under TIA Section 310(a) and
this Article 8 and shall have a combined capital and surplus of at least
$50,000,000 and have a Corporate Trust Office or an agent selected in
accordance with Section 8.09, without the execution or filing of any paper
or any further act on the part of any of the parties hereto.


 


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


 


Section 8.13.                             Preferential
Collection of Claims Against Company.


 


If and when the Trustee
shall be or become a creditor of the Company (or other obligor under the
Securities), the Trustee shall be subject to the provisions of the TIA
regarding the collection of claims against the Company (or any such other
obligor).  A Trustee who has resigned or
been removed shall be subject to TIA Section 311(a) to the extent
indicated therein.


 


Section 8.14.                             Reports By
Trustee.


 


(a)                                  Within 60 days
after May 15 of each year commencing with the first May 15 after the
issuance of Securities, the Trustee, if so required under the TIA, shall
transmit by mail to all Holders, in the manner and to the extent provided in
TIA Section 313(c), a brief report dated as of such May 15 in
accordance with and with respect to the matters required by TIA Section 313(a).  The Trustee shall also transmit by mail to
all Holders, in the manner and to the extent provided in TIA Section 313(c),
a brief report in accordance with and with respect to the matters required by
TIA Section 313(b)(2).


 


(b)                                 A copy of each
report transmitted to Holders pursuant to this Section 8.14 shall, at the
time of such transmission, be mailed to the Company and filed with each
national securities exchange, if any, upon which the Securities are listed and
also with the SEC.  The Company will
notify the Trustee promptly if the Securities are listed on any national
securities exchange and of any delisting thereof.


 


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ARTICLE 9


 


SATISFACTION AND DISCHARGE OF INDENTURE


 


Section 9.01.                             Satisfaction
and Discharge of Indenture.


 


(a)                                  This Indenture
shall cease to be of further force and effect (except as to any surviving
rights of conversion, registration of transfer or exchange of Securities herein
expressly provided for and except as further provided below), and the Trustee,
on demand of and at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture, when
either:


 


(1)                                  all Securities theretofore
authenticated and delivered (other than (i) Securities which have been
destroyed, lost or stolen and which have been replaced or paid as provided in Section 2.08
and (ii) Securities for whose payment money has theretofore been deposited
in trust and thereafter repaid to the Company as provided in Section 2.04)
have been delivered to the Trustee for cancellation; or


 


(2)                                  all such Securities not
theretofore delivered to the Trustee for cancellation have become due and
payable, whether on the Final Maturity Date, any Redemption Date or Specified
Repurchase Date or a Fundamental Change Purchase Date, upon conversion or
otherwise,


 


provided, that


 


(i)                                     the Company has deposited
with the Trustee, a Paying Agent (other than the Company or any of its
Affiliates) or a Conversion Agent, if applicable, immediately available funds
and/or shares of Common Stock, if applicable, in trust for the purpose of and
in an amount sufficient to pay and discharge all indebtedness and obligations
related to such Securities not theretofore delivered to the Trustee for
cancellation, for principal and interest (including Additional Interest and
Special Interest, if any) to the date of such deposit and/or for the payment of
amounts due upon conversion;


 


(ii)                                  the Company has paid or
caused to be paid all other sums payable hereunder by the Company; and


 


(iii)                               the Company has delivered to
the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating
that all conditions precedent herein relating to the satisfaction and discharge
of this Indenture have been complied with.


 


(b)                                 Notwithstanding
the satisfaction and discharge of this Indenture, the obligations of the
Company with respect to the Trustee under Section 8.07 and, if money shall
have been deposited with the Trustee pursuant to clause (2) of Section 9.01(a),
the provisions of Sections 2.03, 2.04, 2.05, 2.06, 2.07, 2.08, 2.13 and
5.01 and this Article 9 shall survive until the Securities have been paid
in full.


 


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Section 9.02.                             Application of
Trust Money.


 


Subject to the provisions of
the last paragraph of Section 2.04, all United States dollars deposited
with the Trustee pursuant to Section 9.01 shall be held in trust and
applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent as the
Trustee may determine, to the Persons entitled thereto, of the principal of and
interest (including the Company acting as its own Paying Agent) on, the
Securities for whose payment such United States dollars have been deposited
with the Trustee.


 


Section 9.03.                             Reinstatement.


 


If the Trustee, any Paying
Agent or any Conversion Agent is unable to apply any money in accordance with Section 9.02
by reason of any legal proceeding or by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Company’s obligations under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to Section 9.01 until such time as the Trustee, such Paying Agent
or such Conversion Agent is permitted to apply all such money in accordance
with Section 9.02; provided, however, that if the Company has made any payment of the
principal of or interest (including Additional Interest and special Interest,
if any) on any Securities because of the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such Securities to
receive any such payment from the money held by the Trustee, such Paying Agent
or such Conversion Agent.


 


ARTICLE 10


 


AMENDMENTS; SUPPLEMENTS AND WAIVERS


 


Section 10.01.                       Without Consent
of Holders.


 


(a)                                  The Company and
the Trustee may amend or supplement this Indenture or the Securities without
notice to or consent of any Holder of a Security for the purpose of:


 


(1)                                  evidencing the succession of
another corporation to the Company and the assumption by that successor
corporation of the Company’s obligations under this Indenture and the
Securities;


 


(2)                                  adding to the covenants of
the Company or add any rights for the benefit of the Holders or surrendering
any right or power conferred upon the Company;


 


(3)                                  securing the obligations of
the Company or adding guarantee in respect of the Securities;


 


(4)                                  evidencing and providing for
the acceptance of the appointment of a successor trustee in accordance with Article 8;


 


(5)                                  complying with the
requirements of the SEC in order to effect or maintain the qualification of
this Indenture under the TIA;


 


74

















 


(6)                                  providing for conversion
rights of Holders if any reclassification or change of Common Stock or any
consolidation, merger or sale of all or substantially all of the Company’s
property and assets occurs or otherwise complying with the provisions of this
Indenture in the event of a merger, consolidation or transfer of assets
(including the provisions of Section 4.10 and Article 6);


 


(7)                                  establishing the forms or
terms of the Securities;


 


(8)                                  curing any ambiguity,
omission, defect or inconsistency in the Indenture, correcting or supplementing
any provision in the Indenture, or making any other provisions with respect to
matters or questions arising under the Indenture, so long as the interests of
Holders of Securities are not adversely affected in any material respect under
this Indenture;


 


(9)                                  to conform the provisions of
the Indenture or the Securities to the corresponding description of the
Securities contained in the applicable offering memorandum; or


 


(10)                            making any change that will
not adversely affect the rights of the Holders in any material respect.


 


Section 10.02.                       With Consent of
Holders.


 


(a)                                  The Company and
the Trustee may amend or supplement this Indenture and the Securities with the
consent of the Holders of at least a majority in aggregate principal amount of
the Outstanding Securities.  However,
without the written consent of each Holder affected, an amendment or supplement
may not:


 


(1)                                  change the Stated Maturity
of any payment of principal of or any installment of interest on any Security
(including the payment of Additional Interest or Special Interest, if any);


 


(2)                                  reduce the principal amount
of Securities or alter the manner or rate of accrual of interest (including
Additional Interest or Special Interest) on the Securities;


 


(3)                                  reduce Redemption Price,
Repurchase Price or Fundamental Change Purchase Price payable with respect to
any of the Securities;


 


(4)                                  change the Company’s
obligation to redeem any Security on a Redemption Date in a manner adverse to
such Holder;


 


(5)                                  change the Company’s
obligation to repurchase any Security at the option of a Holder in manner
adverse to such Holder;


 


(6)                                  change the Company’s
obligation to repurchase any Security upon a Fundamental Change in a manner
adverse to such Holder;


 


75

















 


(7)                                  change any place of payment
where, or the currency in which, any principal or interest (including
Additional Interest or Special Interest) in respect of any Security is payable;


 


(8)                                  make any change that
adversely affects the conversation rights of any Holder of Securities;


 


(9)                                  impair the right of any
Holder of a Security to receive payment of principal and interest (including
any Additional Interest or Special Interest) on such Holders’ Securities when
due;


 


(10)                            impair the right to
institute suit for the enforcement of any payment on or with respect to any
Security;


 


(11)                            reduce the percentage in
principal amount of the Securities, the consent of whose Holders is required to
amend or supplement this Indenture or the Securities, or the consent of whose
Holders is required for any waiver of compliance with various provisions of
this Indenture or the Securities or various defaults thereunder and their
consequences provided for in the Indenture; or


 


(12)                            modify any of the foregoing
provisions described in clause (11) above except to increase any such
percentage or to provide that other provisions of this Indenture or the
Securities cannot be modified or waived without the consent of the Holder of
each outstanding Security affected thereby.


 


(b)                                 Without
limiting the provisions of Section 10.02(a) hereof, the Holders of a
majority in aggregate principal amount of the Securities then outstanding may,
on behalf of all the Holders of all Securities, (i) waive compliance by
the Company with the restrictive provisions of this Indenture, and (ii) waive
any past Default or Event of Default under this Indenture and its consequences,
except an uncured failure to pay any amounts due or to deliver amounts due upon
conversion, with respect to the Securities, or in respect of any provision
which under this Indenture cannot be modified or amended without the consent of
the Holder of each outstanding Security affected.


 


(c)                                  Upon delivery
to the Trustee of a Company Request, and upon the filing with the Trustee of
evidence of the consent of Holders as aforesaid, if required, the Trustee
shall, subject to Section 10.03, join with the Company in the execution of
such supplemental indenture.


 


(d)                                 It shall not be
necessary for any Act of Holders under this Section 10.02 to approve the
particular form of any proposed supplemental indenture but it shall be
sufficient if such Act shall approve the substance thereof.


 


Section 10.03.                       Execution of
Supplemental Indentures and Agreements.


 


In executing, or accepting
the additional trusts created by, any supplemental indenture, agreement,
instrument or waiver permitted by this Article 10 or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, in addition to the documents required by Section 12.04, and
(subject to Section 8.01 and Section 8.03(a) hereof) 


 


76

















 


shall
be fully protected in relying upon, an Opinion of Counsel and an Officer’s
Certificate each stating that the execution of such supplemental indenture,
agreement or instrument, or acceptance of any such additional trust, is
authorized or permitted by this Indenture. 
The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture, agreement or instrument, or accept any such additional
trusts, which affects the Trustee’s own rights, duties or immunities under this
Indenture or otherwise.


 


Section 10.04.                       Effect of
Supplemental Indentures.


 


Upon the execution of any
supplemental indenture under this Article 10, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form a
part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder shall be bound
thereby.


 


Section 10.05.                       Conformity with
Trust Indenture Act.


 


Every supplemental indenture
executed pursuant to this Article 10 shall conform to the requirements of
the TIA as then in effect.


 


Section 10.06.                       Reference in
Securities to Supplemental Indentures.


 


Securities authenticated and
delivered after the execution of any supplemental indenture pursuant to this Article 10
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 Trustee and 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 10.07.                       Notice of
Supplemental Indentures.


 


Promptly after the execution
by the Company and the Trustee of any supplemental indenture pursuant to the
provisions of Section 10.02, the Company shall give notice thereof to the
Holders of each Outstanding Security affected, in the manner provided for in Section 12.02,
setting forth in general terms the substance of such supplemental indenture.  Any failure of the Company to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture.


 


77
















 


ARTICLE 11


 


[Reserved]


 


ARTICLE 12


 


MISCELLANEOUS


 


Section 12.01.                       Conflict with
Trust Indenture Act.


 


If any provision hereof
limits, qualifies or conflicts with any provision of the TIA or another
provision which is required or deemed to be included in this Indenture by any
of the provisions of the TIA, the provision or requirement of the TIA shall
control.  If any provision of this
Indenture modifies or excludes any provision of the TIA that may be so modified
or excluded, the latter provision shall be deemed to apply to this Indenture as
so modified or to be excluded, as the case may be.


 


Section 12.02.                       Notices.


 


Any
demand, authorization notice, request, consent or communication shall be given
in writing and mailed by first-class mail, postage prepaid, or delivered by
recognized overnight courier addressed as follows or transmitted by facsimile
transmission (confirmed by delivery in person or mail by first-class mail,
postage prepaid, or by guaranteed overnight courier) to the following facsimile
numbers:


 


If
to the Company, to:


 


Comtech
Telecommunications Corp.


68
South Service Road


Suite 230


Melville,
NY 11747


Attention:  Michael D. Porcelain


Facsimile
No.: (631) 962-7001


 


or at any other address
previously furnished in writing to the Trustee by the Company, with a copy to:


 


Proskauer
Rose LLP


1585
Broadway


New
York, NY 10036


Attention:  Robert Cantone


Facsimile
No.: (212) 969-2900


 


if to the Trustee, to:


 


The Bank of New York Mellon


101 Barclay Street, Floor 8W


New York, New York 10286


Attention: 
Corporate Trust Administration


Facsimile
No: (212) 815-5704


 


78

















 


or at any other address previously furnished
in writing to the Holders or the Company or any other obligor on the Securities
by the Trustee.


 


Such notices or
communications shall be effective only when actually received.


 


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


 


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


 


In case by reason of the
suspension of regular mail service or by reason of any other cause, it shall be
impracticable to mail notice of any event as required by any provision of this
Indenture, then any method of giving such notice as shall be reasonably
satisfactory to the Trustee shall be deemed to be a sufficient giving of such
notice.


 


If the Company mails any
notice to a Holder of a Security, it shall mail a copy to the Trustee and each
Registrar, Paying Agent and Conversion Agent.


 


Section 12.03.                       Disclosure of
Names and Addresses of Holders.


 


Holders may communicate
pursuant to TIA Section 312(b) with other Holders with respect to
their rights under this Indenture or the Securities, and the Trustee shall comply
with TIA Section 312(b).  The
Company, the Trustee, the Registrar and any other Person shall have the
protection of TIA 312(c).  Further, every
Holder of Securities, by receiving and holding the same, agrees with the
Company and the Trustee that neither the Company nor the Trustee or any agent
of either of them shall be held accountable by reason of the disclosure of any
information as to the names and addresses of the Holders in accordance with TIA
Section 312, regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of
mailing any material pursuant to a request made under TIA Section 312.


 


79

















 


Section 12.04.                       Compliance
Certificates and Opinions.


 


(a)                                  Upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture and as may be requested by the Trustee, the
Company shall furnish to the Trustee an Officer’s Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with, and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent, if any, have been
complied with, except that, in the case of any such application or request as
to which the furnishing of such certificates or opinions is specifically
required by any provision of this Indenture relating to such particular
application or request, no additional certificate or opinion need be furnished.


 


(b)                                 Every
certificate or Opinion of Counsel with respect to compliance with a condition
or covenant provided for in this Indenture shall include:


 


(1)                                  a statement that the Person
signing such certificate or opinion has read and understands such covenant or
condition and the definitions herein relating thereto;


 


(2)                                  a brief statement as to the
nature and scope of the examination or investigation upon which the statements
or opinions contained in such certificate or opinion are based;


 


(3)                                  a statement that, in the
opinion of such Person, such Person 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 as to whether,
in the opinion of such Person, such condition or covenant has been complied
with.


 


Section 12.05.                       Acts of Holders.


 


(a)                                  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 of substantially similar tenor signed
by such Holders in person or by an agent duly appointed in writing; 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 instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the “Act” of the Holders
signing such instrument or instruments. 
Proof of execution of any such instrument or of a writing appointing any
such agent 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 12.05.


 


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


 


(c)                                  Any request,
demand, authorization, direction, notice, consent, waiver or other Act by the
Holder of any Security shall bind every future Holder of the same Security and
the 


 


80

















 


Holder of every Security issued upon the
transfer thereof or in exchange therefor or in lieu thereof, in respect of
anything done, suffered or omitted to be done by the Trustee, any Paying Agent
or Conversion Agent, or the Company or any other obligor of the Securities in
reliance thereon, whether or not notation of such action is made upon such
Security.


 


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


 


(e)                                  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 Board Resolution, fix in advance a record date for the
determination of such 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. 
Notwithstanding TIA Section 316(c), any such record date shall be
the record date specified in or pursuant to such Board Resolution, which shall
be a date not more than 30 days prior to the first solicitation of Holders
generally in connection therewith and no later than the date such first
solicitation is completed.


 


(f)                                    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 purposes of determining whether Holders of the
requisite proportion of Securities then Outstanding have authorized or agreed
or consented to such request, demand, authorization, direction, notice,
consent, waiver or other Act, and for this purpose the Securities then
Outstanding shall be computed as of such record date; provided that no such
request, demand, authorization, direction, notice, consent, waiver or other Act
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 such record date.


 


(g)                                 For purposes of
this Indenture, any action by the Holders which may be taken in writing may be
taken by electronic means or as otherwise reasonably acceptable to the Trustee.


 


Section 12.06.                       Benefits of
Indenture.


 


Nothing in this Indenture or
in the Securities, express or implied, shall give to any Person (other than the
parties hereto and their successors hereunder, any Paying Agent and the
Holders) any benefit or any legal or equitable right, remedy or claim under
this Indenture.


 


Section 12.07.                       Legal Holidays.


 


In any case where any
Interest Payment Date, Redemption Date, Repurchase Date, Fundamental Change
Purchase Date or Final Maturity Date of any Security shall not be a Business
Day, then (notwithstanding any other provision of this Indenture or of the
Securities) 


 


81

















 


payment
of interest or principal need not be made on such date, but may be made on the
next succeeding Business Day with the same force and effect as if made on such
Interest Payment Date, Redemption Date, Repurchase Date, Fundamental Change
Purchase Date or Final Maturity Date, and no interest shall accrue with respect
to such payment for the period from and after such Interest Payment Date,
Redemption Date, Repurchase Date, Fundamental Change Purchase Date or Final
Maturity Date, as the case may be, to the next succeeding Business Day.


 


Section 12.08.                       Governing Law;
Waiver of Trial by Jury.


 


THIS INDENTURE, THE
SECURITIES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK.


 


EACH PARTY HERETO, AND EACH
HOLDER OF A SECURITY BY ITS ACCEPTANCE THEREOF, HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER
OR IN CONNECTION WITH THIS INDENTURE.


 


Section 12.09.                       No Adverse
Interpretation of Other Agreements.


 


This Indenture may not be
used to interpret another indenture, loan or debt agreement of the Company or a
Subsidiary of the Company.  Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.


 


Section 12.10.                       No Personal
Liability of Directors, Officers, Employees and Stockholders.


 


No director, officer,
employee, stockholder, incorporator or agent of the Company will have any
liability for any obligations of the Company under the Securities, the
Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation.  Each
Holder of the Securities by accepting a Security waives and releases all such
liability.


 


Section 12.11.                       Successors and
Assigns.


 


All covenants and agreements
in this Indenture by the parties hereto shall bind their respective successors
and assigns, whether so expressed or not.


 


Section 12.12.                       Multiple
Counterparts.


 


The parties may sign
multiple counterparts of this Indenture. 
Each signed counterpart shall be deemed an original, but all of them
together represent the same agreement.


 


Section 12.13.                       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.


 


82

















 


Section 12.14.                       Schedules and
Exhibits.


 


All schedules and exhibits
attached hereto are by this reference made a part hereof with the same effect
as if herein set forth in full.


 


Section 12.15.                       Effect of
Headings and Table of Contents.


 


The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.


 


[SIGNATURE PAGES FOLLOW]


 


83

















 


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


 


 


	
   

  	
  COMTECH TELECOMMUNICATIONS
  CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 

















 


	
   

  	
  THE BANK OF NEW YORK
  MELLON,

  
	
   

  	
  as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 
















 


Exhibit A


 


[FORM OF FACE OF
SECURITY]


 


UNLESS THIS CERTIFICATE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO
THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF 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. 
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF.  THIS SECURITY IS
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE AND, UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT
AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF
THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY.(1)


 


THIS SECURITY IS ONE OF A
DULY AUTHORIZED ISSUE OF SECURITIES DESIGNATED AS “3% CONVERTIBLE SENIOR NOTES
DUE 2029” (THE “SECURITIES”) ISSUED BY COMTECH TELECOMMUNICATIONS CORP. (THE “COMPANY”).  THIS SECURITY AND THE COMMON STOCK, IF ANY,
ISSUABLE UPON CONVERSION OF THIS SECURITY HAVE NOT BEEN AND WILL NOT BE
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”)
OR ANY STATE SECURITIES LAWS.  NEITHER
THIS SECURITY, THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION OF THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION THEREIN MAY BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING
SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE
ACQUIRER:


 


(1)                              REPRESENTS THAT
IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A “QUALIFIED INSTITUTIONAL BUYER”
(WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT) AND THAT IT
EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, AND


 






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


 

















 


(2)                                     AGREES FOR THE
BENEFIT OF THE COMPANY THAT IT WILL NOT OFFER, RESELL, PLEDGE OR OTHERWISE
TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN, OR ANY COMMON STOCK
ISSUABLE UPON CONVERSION OF THIS SECURITY, PRIOR TO THE DATE THAT IS (X) ONE
YEAR AFTER THE LAST DATE ON WHICH ANY OF THE SECURITIES ARE ORIGINALLY ISSUED
OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES
ACT OR ANY SUCCESSOR PROVISION THEREUNDER, AND (Y) SUCH LATER DATE, IF
ANY, AS MAY BE REQUIRED BY APPLICABLE LAW, EXCEPT:


 


(A)                          TO THE COMPANY OR
ANY SUBSIDIARY THEREOF, OR


 


(B)                            PURSUANT TO A
REGISTRATION STATEMENT THAT HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT, OR


 


(C)                            TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT (IF
AVAILABLE), OR


 


(D)                           PURSUANT TO AN
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF
AVAILABLE) OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.


 


PRIOR TO THE REGISTRATION OF
ANY TRANSFER IN ACCORDANCE WITH (2)(D) ABOVE, THE COMPANY AND THE TRUSTEE
RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS,
CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO
DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE
SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE
AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT. (2)


 


Comtech Telecommunications
Corp.


 


3% Convertible Senior
Notes due 2029


 


	
  No.  R-           

  	
   

  	
  CUSIP: [205826 AE0](3)

  
	
   

  	
   

  	
  [205826
  AF7](4)

  



 


Comtech Telecommunications Corp., a Delaware corporation, promises to
pay to Cede & Co. or registered assigns the principal sum as set forth
in the “Schedule of Exchanges of Securities” attached hereto, which shall not
exceed       DOLLARS ($      ) on May 1, 2029.


 






(2) This Restrictive
Legend should be included if the Security is a Restricted Security.


(3) Restricted
Security CUSIP number.


(4) Unrestricted
Security CUSIP number.


 

















 


This Security shall bear
interest as specified on the other side of this Security.  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.


 

















 


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


 


	
   

  	
  COMTECH TELECOMMUNICATIONS
  CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
  Dated:

  	
   

  
	
   

  	
   

  
	
  Trustee’s Certificate of
  Authentication:

  	
   

  
	
   

  	
   

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

  	
   

  
	
   

  	
   

  
	
  THE BANK OF NEW YORK
  MELLON, as Trustee

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized Signatory

  	
   

  



 

















 


[FORM OF REVERSE SIDE
OF SECURITY]


 


Comtech Telecommunications
Corp.


 


3% Convertible Senior
Notes due 2029


 


1.             Interest


 


Comtech Telecommunications
Corp., a Delaware corporation (the “Company”, which term shall include any
successor company under the Indenture hereinafter referred to), promises to pay
interest on the principal amount of this Security at the rate of 3% per
annum.  The Company shall pay interest
semiannually, in arrears, on May 1 and November 1 of each year (each
an “Interest Payment Date”), commencing on November 1, 2009.  Interest payable on any Interest Payment Date
shall include interest accrued from and including the immediately preceding
Interest Payment Date (or if none, from and including May 8, 2009) to but
excluding the relevant Interest Payment Date. 
Cash interest will be computed on the basis of a 360-day year comprised
of twelve 30-day months.  Any payment
required to be made on a day that is not a Business Day shall be made on the
next succeeding Business Day with the same force and effect as if made on such
day and without any interest in respect of the delay.  The Company shall, to the fullest extent
permitted by law, pay interest in immediately available funds on overdue
principal and interest at the rate of 3% per annum, compounded semiannually,
which interest shall accrue from the date such overdue amount was originally
due to the day preceding the date payment of such amount, including interest
thereon, has been made or duly provided for.


 


Any reference herein to
interest accrued or payable as of any date shall include any Additional
Interest that may be payable in accordance with the provision of Section 7.16
of the Indenture and any Special Interest that may be payable in accordance
with the provisions of Section 7.02 of the Indenture.


 


2.             Method of Payment


 


The Company shall pay
interest on this Security (except defaulted interest) to the Person who is the
Holder of this Security at the close of business on April 15 or October 15,
as the case may be (each, a “Regular Record Date”) next preceding the related
Interest Payment Date.  The Holder must
surrender this Security to a Paying Agent to collect payment of principal.  The Company will pay principal and interest
in money of the United States that at the time of payment is legal tender for
payment of public and private debts.


 


3.             Paying Agent, Registrar and
Conversion Agent


 


Initially, The Bank of New
York Mellon (the “Trustee”, which term shall include any successor trustee
under the Indenture hereinafter referred to) will act as Paying Agent,
Registrar and Conversion Agent.  The
Company may change any Paying Agent, Registrar or Conversion Agent without
notice to the Holders.  The Company or
any of its Affiliates may, subject to certain limitations set forth in the
Indenture, act as Paying Agent.


 

















 


4.             Indenture


 


This Security is one of a
duly authorized issue of Securities of the Company designated as its 3%
Convertible Senior Notes due 2029 (the “Securities”), issued under an
Indenture, dated as of May 8, 2009 (together with any supplemental
indentures thereto, the “Indenture”), between the Company named therein and the
Trustee.  The terms of this Security
include those stated in the Indenture and those required by or made part of the
Indenture by reference to the Trust Indenture Act of 1939, as amended (the “TIA”),
as in effect on the date of the Indenture. 
This Security is subject to all such terms, and the Holder of this Security
is referred to the Indenture and the TIA for a statement of them.  The Securities are limited to $230,000,000
aggregate principal amount.  The
Indenture does not limit other debt of the Company, secured or unsecured.


 


Capitalized
terms not otherwise defined herein have the meaning ascribed to such terms in
the Indenture.


 


5.             Redemption


 


At
any time on or after May 5, 2014 and prior to maturity, the Securities may
be redeemed at the option of the Company, in whole or in part, in cash upon
mailing a notice of such redemption not less than 30 days but not more than 60
days before the Redemption Date to the holders of Securities at their last
registered addresses, all as provided in the Indenture, at a Redemption Price
equal to 100% of the principal amount of Securities being redeemed, plus
accrued and unpaid interest (including Additional Interest and Special
Interest, if any), to, but not including, the Redemption Date; provided that if the Redemption Date falls after a Regular
Record Date and on or prior to the corresponding Interest Payment Date, the
Redemption Price shall be 100% of the principal amount of the Securities
redeemed but shall not include accrued and unpaid interest (including
Additional Interest and Special Interest, if any).  Instead, the Company shall pay such accrued
and unpaid interest (including Additional Interest and Special Interest, if
any), if any, on the Interest Payment Date, to the Holder of record at the
close of business on the corresponding Regular Record Date.


 


6.             Purchase of Securities at Option of
Holder on Specified Dates


 


On
each of May 1, 2014, May 1, 2019 and May 1, 2024 (each, a “Specified
Repurchase Date”), each Holder shall have the option to require the Company to
repurchase Securities for which that Holder has properly delivered and not
withdrawn a written repurchase notice, all as provided in the Indenture, at a
repurchase price in cash equal to 100% of the principal amount of those
Securities, plus accrued and unpaid interest (including Additional Interest and
Special Interest, if any), on those Securities, to, but not including, such
Specified Repurchase Date (the “Repurchase Price”).


 


7.             Purchase of Securities at Option of
Holder Upon a Fundamental Change


 


Upon a Fundamental Change,
at the option of the Holder and subject to the terms and conditions of the
Indenture, the Company shall become obligated to purchase for cash all or any
part specified by the Holder (so long as the principal amount of such part is
$1,000 or an integral 


 

















 


multiple
of $1,000) of the Securities held by such Holder on the date specified by the
Company in accordance with the provisions of Article 3 of the Indenture.


 


8.             Conversion


 


Subject to and upon
compliance with the provisions of the Indenture, the Holder may surrender for
conversion all or any portion of this Security that is in an integral multiple
of $1,000.  Upon conversion, the Holder
shall be entitled to receive the consideration specified in the Indenture.  No fractional share of Common Stock shall be
issued upon conversion of a Security. 
Instead, the Company shall pay a cash adjustment as provided in the
Indenture.  The initial Conversion Rate
of the Securities shall be 27.4395 shares of Common Stock per $1,000 principal
amount of Securities, subject to adjustment in accordance with the provisions
of Article 4 of the Indenture.  If a
Holder converts all or any portion of this Security in connection with the
occurrence of certain Fundamental Change transactions, the Conversion Rate
shall be increased in the manner and to the extent described in Section 4.06
of the Indenture.


 


Securities surrendered for
conversion (in whole or in part) during the period from the close of business
on any Regular Record Date to the opening of business on the next succeeding
Interest Payment Date shall be accompanied by payment by the Holders of such
Securities in funds to the Conversion Agent acceptable to the Company of an
amount equal to the interest payable on such corresponding Interest Payment
Date; provided that no such payment need be
made: (1) if the Company has called the Securities for redemption on a
Redemption Date that falls after a Regular Record Date for an Interest Payment
Date and on or prior to the corresponding Interest Payment Date; (2) in
connection with a conversion following the Regular Record Date preceding the
Final Maturity Date; (3) if the Company has specified a Fundamental Change
Purchase Date that is after a Regular Record Date and on or prior to the
corresponding Interest Payment Date; or (4) to the extent of any overdue
interest, if any overdue interest exists at the time of conversion with respect
to such Security.


 


A
Security in respect of which a Holder has submitted a Repurchase Notice or a
Fundamental Change Purchase Notice may be converted only if such Holder validly
withdraws such Repurchase Notice or such Fundamental Change Purchase Notice in
accordance with the terms of the Indenture.


 


9.             Denominations, Transfer, Exchange


 


The
Securities are in registered form, without coupons, in denominations of $1,000
principal amount and integral multiples of $1,000 principal amount.  A Holder may register the transfer of 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 or other governmental charges that may be imposed in relation
thereto by law or permitted by the Indenture.


 


10.          Persons Deemed Owners


 


The Holder of a Security may
be treated as the owner of it for all purposes.


 

















 


11.          Unclaimed Money


 


If money for the payment of
principal or interest remains unclaimed for two years, the Trustee and any
Paying Agent will pay the money back to the Company, subject to the provisions
of the Indenture.  After that, Holders
entitled to money must look to the Company for payment as general creditors.


 


12.          Amendment, Supplement and Waiver


 


Subject to certain
exceptions, the Indenture or the Securities may be amended or supplemented with
the consent of the Holders of at least a majority in aggregate principal amount
of the Securities then Outstanding, and an existing Default or Event of Default
and its consequence or compliance with any provision of the Indenture or the
Securities may be waived subject to certain exceptions with the consent of the
Holders of a majority in aggregate principal amount of the Securities then
Outstanding.  Without the consent of or
notice to any Holder, the Company and the Trustee may amend or supplement the
Indenture or the Securities to, among other things, (x) cure any
ambiguity, omission, mistake, defect or inconsistency or (y) make any
other change that does not adversely affect the interests of the Holders in any
material respect.


 


13.          Successor Entity


 


When a successor Person
assumes all the obligations of its predecessor under the Securities and the
Indenture in accordance with the terms and conditions of the Indenture, the
predecessor Person (except in certain circumstances specified in the Indenture)
shall be released from those obligations.


 


14.          Defaults and Remedies


 


An Event of Default shall
occur upon the occurrence of any of the events specified in Section 7.01(a) of
the Indenture.  Subject to the provisions
of the penultimate paragraph of Section 7.02(c) of the Indenture, if
an Event of Default shall occur and be continuing with respect to the
Securities (other than an Event of Default specified in clause (10) or
(11) of Section 7.01(a) of the Indenture), the Trustee or the Holders
of not less than 25% in aggregate principal amount of the Securities then
Outstanding may, and the Trustee at the request of such Holders shall, declare
all unpaid principal of and accrued interest (including Additional Interest and
Special Interest), if any, on all Securities to be due and payable, by a notice
in writing to the Company (and to the Trustee if given by the Holders of the
Securities).  Upon any such declaration,
such principal and interest (including Additional Interest and Special
Interest), if any, shall become due and payable immediately.  If an Event of Default specified in
clauses (10) or (11) of Section 7.01(a) of the Indenture
occurs and is continuing, then all the Securities shall ipso facto become and
be due and payable immediately in an amount equal to the principal amount of
the Securities, together with accrued and unpaid interest (including Additional
Interest and Special Interest), if any, to the date the Securities become due
and payable, without any declaration or other act on the part of the Trustee or
any Holder.


 


The Holders of a majority in
aggregate principal amount of the Securities Outstanding, by written notice to
the Company and the Trustee, may rescind and annul an acceleration and its
consequences if:  (a) the Company
has paid or deposited with the Trustee a sum sufficient to pay 


 

















 


(1) all
sums paid or advanced by the Trustee under the Indenture and the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, (2) all overdue interest on all Securities then Outstanding, (3) the
principal of any Securities then Outstanding which have become due otherwise
than by such declaration of acceleration and interest thereon at the rate borne
by the Securities, and (4) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate borne by the Securities; (b) the
rescission would not conflict with any judgment or decree of a court of
competent jurisdiction; and (c) all Defaults and Events of Default, other
than the non-payment of principal of and interest on the Securities which have
become due solely by such declaration of acceleration, have been cured or
waived.  No such rescission shall affect
any subsequent Default or impair any right consequent thereon.


 


Holders may not enforce the
Indenture or the Securities except as provided in the Indenture.  The Trustee may require indemnity
satisfactory to it before it enforces the Indenture or the Securities.  Subject to certain limitations, Holders of a
majority in aggregate principal amount of the Securities then Outstanding may
direct the Trustee in its exercise of any trust or power.  The Trustee may, in accordance with the
provisions of the Indenture, withhold from Holders notice of any continuing
Default (except a Default in payment of principal or interest or to deliver amounts
owing upon conversion) if and so long as it determines that withholding notice
is in their interests.  The Company is
required to file periodic certificates with the Trustee as to the Company’s
compliance with the Indenture and knowledge or status of any Default.


 


15.          Trustee Dealings with the Company


 


The Bank of New York Mellon,
the initial Trustee under the Indenture, or any of its Affiliates, in its
individual or any other capacity, may make loans to, accept deposits from and
perform services for the Company or an Affiliate of the Company, and may
otherwise deal with the Company or an Affiliate of the Company, as if it were
not the Trustee.


 


16.          No Recourse Against Others


 


No director, officer,
employee, stockholder, incorporator or agent of the Company, as such, will have
any liability for any obligations of the Company under the Securities, the
Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation.  Each
Holder of the Securities by accepting a Security waives and releases all such
liability.


 


17.          Authentication


 


This Security shall not be
valid until the Trustee or an authenticating agent manually signs the
certificate of authentication on the other side of this Security.


 


18.          Abbreviations and Definitions


 


Customary abbreviations may
be used in the name of the Holder 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 UGMA (= Uniform Gifts to
Minors Act).


 

















 


All terms defined in the
Indenture and used in this Security but not specifically defined herein are
defined in the Indenture and are used herein as so defined.


 


20.          Indenture to Control; Governing Law


 


In the case of any conflict
between the provisions of this Security and the Indenture, the provisions of
the Indenture shall control.  This
Security and the Indenture shall be governed by, and construed in accordance
with, the laws of the State of New York.


 


The Company will furnish to
any Holder, upon written request and without charge, a copy of the
Indenture.  Requests may be made to:  Comtech Telecommunication Corp., 68 South Service
Road, Suite 230, Melville, NY 11747,
Attention:  Michael D. Porcelain,
Facsimile No. (631) 962-7001.


 
















 


SCHEDULE OF EXCHANGES OF SECURITIES


 


The initial principal amount
of this Global Security is                 ($         )
The following exchanges, purchases or conversions of a part of this Global
Security have been made:


 


	
  Date

  	
   

  	
  Authorized

  Signatory of

  Securities Custodian

  	
   

  	
  Notation Stating and Explaining Change

  in Principal

  Amount Recorded

  	
   

  	
  Principal Amount

  of this

  Global Security

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


 

















 


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 I.D. 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 or her.

  



 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Your
  Signature:

  
	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

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

  
	
   

  	
   

  	
   

  
	
  *Signature
  guaranteed by:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
					



 






*               The signature
must be guaranteed by an institution which is a member of one of the following
recognized signature guaranty programs:  (i) the
Securities Transfer Agent Medallion Program (STAMP); (ii) the New York
Stock Exchange Medallion Program (MSP); (iii) the Stock Exchange Medallion
Program (SEMP); or (iv) such other guaranty program acceptable to the
Trustee.


 

















 


FORM OF 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 (must be $1,000 or a
integral multiple of $1,000): 
$              .


 


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


 


	
   

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

  



 


	
   

  
	
   

  
	
   

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

  



 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Your
  Signature:

  
	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

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

  
	
   

  	
   

  	
   

  
	
  *Signature
  guaranteed by:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
					



 






*               The signature
must be guaranteed by an institution which is a member of one of the following
recognized signature guaranty programs:  (i) the
Securities Transfer Agent Medallion Program (STAMP); (ii) the New York
Stock Exchange Medallion Program (MSP); (iii) the Stock Exchange Medallion
Program (SEMP); or (iv) such other guaranty program acceptable to the
Trustee.


 

















 


FORM OF
NOTICE OF REDEMPTION


 


[DATE]


 


To the Holders of the 3%
Convertible Senior Notes due 2029 issued by Comtech Telecommunications Corp.:


 


Comtech
Telecommunications Corp. (the “Issuer”) by this written notice hereby exercises,
pursuant to Section 3.01 of that certain Indenture (the “Indenture”),
dated as of May 8, 2009, between the Issuer and The Bank of New York
Mellon, its right to redeem
$[                  ]
of its 3% Convertible Senior Notes due        2029
(the “Securities”).  All capitalized
terms used herein and not otherwise defined herein shall have the meanings
assigned to such terms in the Indenture.


 


1.                    Redemption Date: 
[                    ,
        ]


 


2.                    Redemption Price: 
$[            ]


 


3.                    Conversion Rate:  Each $1,000 principal amount of the
Securities is convertible into [•] shares of the Issuer’s common stock,
par value $0.10 per share (the “Common Stock”), subject to adjustment, during
the period described below.


 


4.                    Paying Agent and Conversion
Agent:  [NAME] [ADDRESS]


 


5.                    The Securities called for
redemption may be converted at your option at any time from the date of this
Notice of Redemption until 5:00 p.m. (New York City time) on the Business
Day immediately prior to the Redemption Date set forth above.


 


6.                    The Securities called for
redemption and not converted at your election prior to 5:00 p.m. (New York
City time) on the Business Day immediately prior to Redemption Date set forth
above shall be redeemed on the Redemption Date.


 


7.                    If you elect to convert your
Securities, you must satisfy the requirements for conversion set forth in your
Securities.


 


8.                    Your Securities called for
redemption must be surrendered by you (by effecting book entry transfer of the
Securities or delivering Certificated Securities, together with necessary
endorsements, as the case may be) to [Name of Paying Agent] at [insert
address] in order for you to collect the Redemption Price.


 


9.                    [The Securities bearing the
following Certificate Number(s) in the principal amount set forth below
opposite such Certificate Number(s) are being redeemed:


 


Certificate Number(s)         Principal Amount]


 


10.              Unless the Issuer defaults in making the payment of
the Redemption Price owed to you, Interest, Additional Interest, if any, and
Special Interest, if any, on your Securities called for redemption shall cease
to accrue on and after the Redemption Date.


 


11.              CUSIP Number: 
[205826 AE0](5) [205826 AF7](6)


 


 


COMTECH
TELECOMMUNICATIONS CORP.


 


 






(5) Restricted Security
CUSIP number.


(6) Unrestricted
Security CUSIP number.


 

















 


FORM OF
NOTICE OF REPURCHASE


 


[DATE]


 


To the Beneficial Owners of
the 3% Convertible Senior Notes due 2029 (the “Securities”) issued by Comtech
Telecommunications Corp.:


 


Comtech
Telecommunications Corp. (the “Issuer”) by this written notice hereby
notifies you, pursuant to Section [3.07] [3.08] of that certain Indenture
(the “Indenture”), dated as of May 8, 2009, between the Issuer
and The Bank of New York Mellon, that you may request the
Issuer to repurchase your Securities by delivery of a Repurchase Notice.  Included herewith is the form of Repurchase
Notice to be completed by you if you wish to have your Securities repurchased
by the Issuer.  All capitalized terms
used herein and not otherwise defined herein shall have the meanings assigned
to such terms in the Indenture.


 


1.       Repurchase Date:  [              ]


 


2.       Repurchase Price:  [              ]


 


3.       Conversion Rate:  To the
extent described in Item 5 below, each $1,000 principal amount of the
Securities is convertible into [•] shares of the
Issuer’s common stock, par value $0.10 per share (the “Common Stock”), subject
to adjustment.


 


4.       Paying Agent and Conversion Agent:  [NAME] [ADDRESS]


 


5.       The Securities as to which you deliver a Repurchase Notice to
the Paying Agent may be converted only if you withdraw such Repurchase Notice
pursuant to the terms of the Indenture. 
You are entitled to have your Securities converted into shares of the
Issuer’s common stock at any time prior to the close of business on the second
Scheduled Trading Day immediately preceding May 1, 2029.


 


6.       The Securities as to which you a Repurchase Notice must be
surrendered by you (by effecting book entry transfer of the Securities or
delivering Certificated Securities, together with necessary endorsements, as
the case may be) to [Name of Paying Agent] at [insert address] in order for you
to collect the Repurchase Price.


 


7.       The Repurchase Price for the Securities as to which you have
delivered a Repurchase Notice and not withdrawn such Repurchase Notice shall be
paid promptly following the later of the Business Day immediately following
such Repurchase Date and the date you deliver such Securities to [Name of
Paying Agent].


 


8.       In order to exercise your option to have the Issuer repurchase
your Securities, you must deliver the Repurchase Notice, duly completed by you
with the information required by such Repurchase Notice (as specified in Section [3.07]
[3.08] of the Indenture) and deliver such Repurchase Notice to the Paying
Agent at any time from 9:00 a.m. (New York City time) on [insert day that
is 20 Business Days prior to Repurchase Date] until 5:00 p.m. (New York
City time) on the [insert the Business Day immediately preceding the Repurchase
Date].


 


9.       In order to withdraw any Repurchase Notice previously
delivered by you to the Paying Agent, you must deliver to the Paying Agent, by
5:00 p.m. (New York time) on [insert day that is the Business Day
prior to the Repurchase Date], a written notice of withdrawal specifying 


 

















 


(i) the certificate
number, if any, of the Securities in respect of which such notice of withdrawal
is being submitted, (ii) the principal amount of the Securities in respect
of which such notice of withdrawal is being submitted (or if the Securities are
not in definitive form, the notice of withdrawal must comply with the
Applicable Procedures), and (iii) if you are not withdrawing your
Repurchase Notice for all of your Securities, the principal amount of the
Securities which still remain subject to the original Repurchase Notice.


 


10.     Unless the Issuer defaults in making the payment of the
Repurchase Price owed to you, Interest (including Additional Interest and
Special Interest), if any, on your Securities as to which you
have delivered a Repurchase Notice shall cease to accrue on and after the
Repurchase Date.


 


11.     CUSIP Number:  [205826
AE0](7) [205826 AF7](8)


 


12.     Any Security not properly tendered or not otherwise accepted for
repurchase shall remain outstanding and continue to accrue interest (including
Additional Interest and Special Interest), if any.


 


13.     Holders whose Securities are being repurchased only in part will
be issued new Securities equal in principal amount to that portion of the
Securities tendered (or transferred by book-entry) that is not to be
repurchased, which portion must be equal to $1,000 in principal amount or an
integral multiple thereof.


 


 


COMTECH TELECOMMUNICATIONS
CORP.


 


 






(7) Restricted Security
CUSIP number.


(8) Unrestricted
Security CUSIP number.


 

















 


FORM OF
[REPURCHASE][FUNDAMENTAL CHANGE PURCHASE] NOTICE


 


To:
[Name of Paying Agent]


 


The undersigned registered
owner of this Security hereby acknowledges receipt of a notice from Comtech
Telecommunications Corp. (the “Company”) pursuant to Section [3.07][3.08]
of that certain Indenture (the “Indenture”), dated as of May 8, 2009,
between the Company and The Bank of New York Mellon, and requests and instructs
the Company to purchase the entire principal amount of this Security, or the
portion thereof (which is $1,000 or an integral multiple thereof) below
designated, in accordance with the terms of the Security and the Indenture at
the [Specified Repurchase][Fundamental Change Purchase] Price, together with
accrued and unpaid interest (including Additional Interest and Special
Interest, if any), to, but not including, the [Specified
Repurchase][Fundamental Change Purchase] Date, to the registered Holder hereof.


 


 


	
  Date:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature (s)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signatures must be
  guaranteed by a qualified guarantor institution with membership in an
  approved signature guarantee program pursuant to Rule 17Ad-15 under the
  Securities Exchange Act of 1934.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature Guaranty

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Principal amount to be
  redeemed (in an integral  Multiple of $1,000, if
  less than all):

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Certificate number (if
  applicable):

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  



 


NOTICE:  The signature to the foregoing election must
correspond to the name as written upon the face of this Security in every
particular, without any alteration or change whatsoever.


 


A-1

















 


CERTIFICATE
TO BE DELIVERED UPON EXCHANGE OR REGISTRATION

OF TRANSFER OF RESTRICTED SECURITIES


 


Re:                               3% Convertible Senior Notes
due 2029 (the “Securities”) of Comtech Telecommunications Corp.


 


This certificate relates to
$                      
principal amount of Securities owned in (check applicable box)  o  book-entry or o  definitive form by
                        
(the “Transferor”).


 


The Transferor has requested
a Registrar or the Trustee to exchange or register the transfer of such Securities.


 


In connection with such
request and in respect of each such Security, the Transferor does hereby
certify that the Transferor is familiar with transfer restrictions relating to
the Securities as provided in Section 2.13 of the Indenture, dated as of May 8,
2009, among Comtech Telecommunications Corp., and The Bank of New York Mellon,
as trustee (the “Indenture”), and the transfer of such Security is being made
pursuant to an effective registration statement under the Securities Act of
1933, as amended (the “Securities Act”) (check applicable box), or the transfer
or exchange, as the case may be, of such Security does not require registration
under the Securities Act because (check applicable box):


 


o                                    Such Security is being
transferred pursuant to an effective registration statement under the
Securities Act.


 


o                                    Such Security is being
acquired for the Transferor’s own account, without transfer.


 


o                                    Such Security is being
transferred to the Company or a Subsidiary (as defined in the Indenture) of the
Company.


 


o                                    Such Security is being
transferred to a person the Transferor reasonably believes is a “qualified
institutional buyer” (as defined in Rule 144A or any successor provision
thereto (“Rule 144A”) under the Securities Act) that is purchasing for its
own account or for the account of a “qualified institutional buyer”, in each
case to whom notice has been given that the transfer is being made in reliance
on such Rule 144A, and in each case in reliance on Rule 144A.


 


o                                    Such Security is being
transferred pursuant to and in compliance with an exemption from the
registration requirements under the Securities Act in accordance with Rule 144
(or any successor thereto) (“Rule 144”) under the Securities Act.


 


o                                    Such Security is being
transferred pursuant to and in compliance with an exemption from the
registration requirements of the Securities Act (other than an exemption
referred to above) and as a result of which such Security will, upon such
transfer, cease to be a “restricted security” within the meaning of Rule 144
under the Securities Act.


 


The Transferor acknowledges
and agrees that, if the transferee will hold any such Securities in the form of
beneficial interests in a Global Security which is a “restricted security”
within the meaning of Rule 144 under the Securities Act, then such
transfer can only be made 


 


A-2

















 


pursuant
to Rule 144A under the Securities Act and such transferee must be a “qualified
institutional buyer” (as defined in Rule 144A).


 


	
  Date:

  	
   

  	
   

  
	
   

  	
   

  	
  (Insert
  Name of Transferor)

  



 


A-3