Exhibit 4-g


	
   

  



 


 


ADC TELECOMMUNICATIONS, INC.


 


1%
CONVERTIBLE SUBORDINATED NOTES DUE JUNE 15, 2008

FLOATING RATE CONVERTIBLE SUBORDINATED NOTES DUE JUNE 15, 2013


 












 


INDENTURE

DATED AS OF JUNE 4, 2003


 












 


U.S.
BANK NATIONAL ASSOCIATION,

AS TRUSTEE


 


 


	
   

  



 

















 


TABLE
OF CONTENTS


 


	
  ARTICLE
  1 DEFINITIONS AND INCORPORATION BY REFERENCE

  
	
   

  
	
  SECTION 1.1.

  	
  DEFINITIONS

  
	
  SECTION 1.2.

  	
  OTHER DEFINITIONS

  
	
  SECTION 1.3.

  	
  TRUST
  INDENTURE ACT PROVISIONS

  
	
  SECTION 1.4.

  	
  RULES OF
  CONSTRUCTION

  
	
   

  	
   

  
	
  ARTICLE 2 THE SECURITIES

  
	
   

  
	
  SECTION 2.1.

  	
  FORM AND DATING

  
	
  SECTION 2.2.

  	
  EXECUTION
  AND AUTHENTICATION

  
	
  SECTION 2.3.

  	
  REGISTRAR,
  PAYING AGENT AND CONVERSION AGENT

  
	
  SECTION 2.4.

  	
  PAYING
  AGENT TO HOLD MONEY IN TRUST

  
	
  SECTION 2.5.

  	
  SECURITYHOLDER LISTS

  
	
  SECTION 2.6.

  	
  TRANSFER AND
  EXCHANGE

  
	
  SECTION 2.7.

  	
  REPLACEMENT
  SECURITIES

  
	
  SECTION 2.8.

  	
  OUTSTANDING
  SECURITIES

  
	
  SECTION 2.9.

  	
  TREASURY SECURITIES

  
	
  SECTION 2.10.

  	
  TEMPORARY
  SECURITIES

  
	
  SECTION 2.11.

  	
  CANCELLATION

  
	
  SECTION 2.12.

  	
  LEGEND;
  ADDITIONAL TRANSFER AND EXCHANGE REQUIREMENTS

  
	
  SECTION 2.13.

  	
  CUSIP NUMBERS

  
	
   

  	
   

  
	
  ARTICLE 3 REDEMPTION
  AND PURCHASES

  
	
   

  
	
  SECTION 3.1.

  	
  RIGHT
  TO REDEEM; NOTICES TO TRUSTEE

  
	
  SECTION 3.2.

  	
  SELECTION
  OF SECURITIES TO BE REDEEMED

  
	
  SECTION 3.3.

  	
  NOTICE OF
  REDEMPTION

  
	
  SECTION 3.4.

  	
  EFFECT
  OF NOTICE OF REDEMPTION

  
	
  SECTION 3.5.

  	
  DEPOSIT
  OF REDEMPTION PRICE

  
	
  SECTION 3.6.

  	
  SECURITIES
  REDEEMED IN PART

  
	
  SECTION 3.7.

  	
  [Intentionally
  Omitted]

  
	
  SECTION 3.8.

  	
  PURCHASE
  OF SECURITIES AT OPTION OF THE HOLDER UPON CHANGE IN CONTROL

  
	
  SECTION 3.9.

  	
  COMPANY’S
  RIGHT TO ELECT MANNER OF PAYMENT OF CHANGE IN CONTROL PURCHASE PRICE FOR
  PAYMENT

  
	
  SECTION 3.10.

  	
  EFFECT
  OF CHANGE IN CONTROL PURCHASE NOTICE

  
	
  SECTION 3.11.

  	
  DEPOSIT
  OF CHANGE IN CONTROL PURCHASE PRICE

  
	
  SECTION 3.12.

  	
  SECURITIES
  PURCHASED IN PART

  
	
  SECTION 3.13.

  	
  COMPLIANCE
  WITH SECURITIES LAWS UPON PURCHASE OF SECURITIES

  
	
  SECTION 3.14.

  	
  REPAYMENT TO
  THE COMPANY

  
	
   

  	
   

  
	
  ARTICLE 4 CONVERSION

  
	
   

  	
   

  
	
  SECTION 4.1.

  	
  CONVERSION
  PRIVILEGE

  
	
  SECTION 4.2.

  	
  CONVERSION PROCEDURE

  
	
  SECTION 4.3.

  	
  FRACTIONAL SHARES

  



 

















 


	
  SECTION 4.4.

  	
  TAXES ON CONVERSION

  
	
  SECTION 4.5.

  	
  COMPANY TO
  PROVIDE STOCK

  
	
  SECTION 4.6.

  	
  ADJUSTMENT
  OF CONVERSION PRICE

  
	
  SECTION 4.7.

  	
  NO ADJUSTMENT

  
	
  SECTION 4.8.

  	
  ADJUSTMENT
  FOR TAX PURPOSES

  
	
  SECTION 4.9.

  	
  NOTICE OF ADJUSTMENT

  
	
  SECTION 4.10.

  	
  NOTICE OF
  CERTAIN TRANSACTIONS

  
	
  SECTION 4.11.

  	
  EFFECT
  OF RECLASSIFICATION, CONSOLIDATION, MERGER OR SALE ON CONVERSION PRIVILEGE

  
	
  SECTION 4.12.

  	
  TRUSTEE’S
  DISCLAIMER

  
	
  SECTION 4.13.

  	
  VOLUNTARY REDUCTION

  
	
   

  	
   

  
	
  ARTICLE 5 SUBORDINATION

  
	
   

  
	
  SECTION 5.1.

  	
  AGREEMENT OF
  SUBORDINATION

  
	
  SECTION 5.2.

  	
  PAYMENTS TO HOLDERS

  
	
  SECTION 5.3.

  	
  SUBROGATION OF
  SECURITIES

  
	
  SECTION 5.4.

  	
  AUTHORIZATION
  TO EFFECT SUBORDINATION

  
	
  SECTION 5.5.

  	
  NOTICE TO TRUSTEE

  
	
  SECTION 5.6.

  	
  TRUSTEE’S
  RELATION TO SENIOR INDEBTEDNESS

  
	
  SECTION 5.7.

  	
  NO
  IMPAIRMENT OF SUBORDINATION

  
	
  SECTION 5.8.

  	
  CERTAIN
  CONVERSIONS DEEMED PAYMENT

  
	
  SECTION 5.9.

  	
  ARTICLE
  APPLICABLE TO PAYING AGENTS

  
	
  SECTION 5.10.

  	
  SENIOR
  INDEBTEDNESS ENTITLED TO RELY

  
	
   

  	
   

  
	
  ARTICLE 6 COVENANTS

  
	
   

  
	
  SECTION 6.1.

  	
  PAYMENT OF
  SECURITIES

  
	
  SECTION 6.2.

  	
  SEC REPORTS

  
	
  SECTION 6.3.

  	
  COMPLIANCE
  CERTIFICATES

  
	
  SECTION 6.4.

  	
  FURTHER
  INSTRUMENTS AND ACTS

  
	
  SECTION 6.5.

  	
  MAINTENANCE
  OF CORPORATE EXISTENCE

  
	
  SECTION 6.6.

  	
  RULE 144A
  INFORMATION REQUIREMENT

  
	
  SECTION 6.7.

  	
  STAY,
  EXTENSION AND USURY LAWS

  
	
  SECTION 6.8.

  	
  PAYMENT OF
  ADDITIONAL INTEREST

  
	
   

  	
   

  
	
  ARTICLE
  7 CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE

  
	
   

  
	
  SECTION 7.1.

  	
  COMPANY
  MAY CONSOLIDATE, ETC. ONLY ON CERTAIN TERMS

  
	
  SECTION 7.2.

  	
  SUCCESSOR
  SUBSTITUTED

  
	
   

  	
   

  
	
  ARTICLE 8 DEFAULT AND
  REMEDIES

  
	
   

  
	
  SECTION 8.1.

  	
  EVENTS OF DEFAULT

  
	
  SECTION 8.2.

  	
  ACCELERATION

  
	
  SECTION 8.3.

  	
  OTHER REMEDIES

  
	
  SECTION 8.4.

  	
  WAIVER
  OF DEFAULTS AND EVENTS OF DEFAULT

  
	
  SECTION 8.5.

  	
  CONTROL BY MAJORITY

  
	
  SECTION 8.6.

  	
  LIMITATIONS ON SUITS

  



 


ii

















 


	
  SECTION 8.7.

  	
  RIGHTS
  OF HOLDERS TO RECEIVE PAYMENT AND TO CONVERT

  
	
  SECTION 8.8.

  	
  COLLECTION
  SUIT BY TRUSTEE

  
	
  SECTION 8.9.

  	
  TRUSTEE
  MAY FILE PROOFS OF CLAIM

  
	
  SECTION 8.10.

  	
  PRIORITIES

  
	
  SECTION 8.11.

  	
  UNDERTAKING FOR
  COSTS

  
	
   

  	
   

  
	
  ARTICLE 9 TRUSTEE

  
	
   

  
	
  SECTION 9.1.

  	
  DUTIES OF TRUSTEE

  
	
  SECTION 9.2.

  	
  RIGHTS OF TRUSTEE

  
	
  SECTION 9.3.

  	
  INDIVIDUAL
  RIGHTS OF TRUSTEE

  
	
  SECTION 9.4.

  	
  TRUSTEE’S DISCLAIMER

  
	
  SECTION 9.5.

  	
  NOTICE
  OF DEFAULT OR EVENTS OF DEFAULT

  
	
  SECTION 9.6.

  	
  REPORTS BY
  TRUSTEE TO HOLDERS

  
	
  SECTION 9.7.

  	
  COMPENSATION
  AND INDEMNITY

  
	
  SECTION 9.8.

  	
  REPLACEMENT OF
  TRUSTEE

  
	
  SECTION 9.9.

  	
  SUCCESSOR
  TRUSTEE BY MERGER, ETC

  
	
  SECTION 9.10.

  	
  ELIGIBILITY;
  DISQUALIFICATION

  
	
  SECTION 9.11.

  	
  PREFERENTIAL
  COLLECTION OF CLAIMS AGAINST COMPANY

  
	
   

  	
   

  
	
  ARTICLE
  10 SATISFACTION AND DISCHARGE OF INDENTURE

  
	
   

  
	
  SECTION 10.1.

  	
  SATISFACTION
  AND DISCHARGE OF INDENTURE

  
	
  SECTION 10.2.

  	
  APPLICATION
  OF TRUST MONEY

  
	
  SECTION 10.3.

  	
  REPAYMENT TO
  COMPANY

  
	
  SECTION 10.4.

  	
  REINSTATEMENT

  
	
   

  	
   

  
	
  ARTICLE
  11 AMENDMENTS, SUPPLEMENTS AND WAIVERS

  
	
   

  
	
  SECTION 11.1.

  	
  WITHOUT
  CONSENT OF HOLDERS

  
	
  SECTION 11.2.

  	
  WITH CONSENT OF
  HOLDERS

  
	
  SECTION 11.3.

  	
  COMPLIANCE
  WITH TRUST INDENTURE ACT

  
	
  SECTION 11.4.

  	
  REVOCATION
  AND EFFECT OF CONSENTS

  
	
  SECTION 11.5.

  	
  NOTATION
  ON OR EXCHANGE OF SECURITIES

  
	
  SECTION 11.6.

  	
  TRUSTEE
  TO SIGN AMENDMENTS, ETC

  
	
  SECTION 11.7.

  	
  EFFECT
  OF SUPPLEMENTAL INDENTURES

  
	
   

  	
   

  
	
  ARTICLE 12 MISCELLANEOUS

  
	
   

  
	
  SECTION 12.1.

  	
  TRUST
  INDENTURE ACT CONTROLS

  
	
  SECTION 12.2.

  	
  NOTICES

  
	
  SECTION 12.3.

  	
  COMMUNICATIONS
  BY HOLDERS WITH OTHER HOLDERS

  
	
  SECTION 12.4.

  	
  CERTIFICATE
  AND OPINION AS TO CONDITIONS PRECEDENT

  
	
  SECTION 12.5.

  	
  RECORD
  DATE FOR VOTE OR CONSENT OF SECURITYHOLDERS

  
	
  SECTION 12.6.

  	
  RULES
  BY TRUSTEE, PAYING AGENT, REGISTRAR AND CONVERSION AGENT

  
	
  SECTION 12.7.

  	
  LEGAL HOLIDAYS

  
	
  SECTION 12.8.

  	
  GOVERNING
  LAW; SUBMISSION TO JURISDICTION

  



 


iii

















 


	
  SECTION 12.9.

  	
  NO
  ADVERSE INTERPRETATION OF OTHER AGREEMENTS

  
	
  SECTION 12.10.

  	
  NO RECOURSE
  AGAINST OTHERS

  
	
  SECTION 12.11.

  	
  SUCCESSORS

  
	
  SECTION 12.12.

  	
  MULTIPLE
  COUNTERPARTS

  
	
  SECTION 12.13.

  	
  SEPARABILITY

  
	
  SECTION 12.14.

  	
  TABLE
  OF CONTENTS, HEADINGS, ETC

  
	
  SECTION 12.15.

  	
  CALCULATIONS
  IN RESPECT OF THE SECURITIES

  



 


iv

















 


THIS INDENTURE dated as
of June 4, 2003 is between ADC Telecommunications, Inc., a corporation duly
organized under the laws of the State of Minnesota (the “Company”), and U.S.
Bank National Association, a national banking association organized and existing
under the laws of the United States, as Trustee (the “Trustee”).


 


In consideration of the
premises and the purchase of the Securities by the Holders thereof, both
parties agree as follows for the benefit of the other and for the equal and
ratable benefit of the registered Holders of the Company’s 1% Convertible
Subordinated Notes Due June 15, 2008 and Floating Rate Convertible
Subordinated Notes Due June 15, 2013.


 


ARTICLE 1

DEFINITIONS AND INCORPORATION BY REFERENCE


 


SECTION 1.1. DEFINITIONS.


 


“Additional Interest” has
the meaning specified in Section 5 of the Registration Rights
Agreement.  All references herein to
interest accrued or payable as of any date shall include any Additional
Interest accrued or payable as of such date as provided in the Registration
Rights Agreement.


 


“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 transfer or exchange of beneficial ownership
interests in the Global Securities, the rules and procedures of the Depositary,
to the extent applicable to such transfer or exchange.


 


“Board of Directors”
means either the board of directors of the Company or any committee of the
Board of Directors authorized to act for it with respect to this Indenture.


 


“Business Day” means each
day that is not a Legal Holiday.


 


“Capital Stock” or
“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) 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 Securities”
means Securities that are in substantially the forms attached hereto as Exhibit A-1
and Exhibit A-2 and that do not include the information or the
schedule called for by footnotes 1, 3 and 4 thereof.


 

















 


“Common Stock” means the
common stock of the Company, $0.20 par value per share, as it exists on the
date of this Indenture and any shares of any class or classes of capital stock
of the Company resulting from any reclassification or reclassifications thereof
and which have no preference in respect of dividends or of amounts payable in
the event of any voluntary or involuntary liquidation, dissolution or
winding-up of the Company and which are not subject to redemption by the
Company; provided, however, that if at any time there shall be
more than one such resulting class, the shares of each such class then so
issuable on conversion of Securities shall be substantially in the proportion
which the total number of shares of such class resulting from all such
reclassifications bears to the total number of shares of all such classes
resulting from all such reclassifications.


 


“Company” means the 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.


 


“Corporate Trust Office”
means the principal office of the Trustee at which at any particular time its
corporate trust business shall be administered which office at the date of the
execution of this Indenture is located at
[                ],
Attention:  Corporate Trust Services
(ADC Telecommunications, Inc. — 1% Convertible Subordinated Notes Due
June 15, 2008 and Floating Rate Convertible Subordinated Notes Due June
15, 2013) or at any other time at such other address as the Trustee may
designate from time to time by notice to the Company.


 


“Default” or “default”
means, when used with respect to the Securities, any event which is or, after
notice or passage of time or both, would be an Event of Default.


 


“Designated Senior
Indebtedness” means any particular Senior Indebtedness of the Company in which
the instrument creating or evidencing the same (or any related agreements or
documents to which the Company is a party) expressly provides that such Senior
Indebtedness shall be “Designated Senior Indebtedness” for purposes of this
Indenture (provided  that such instrument, agreement or other
document may place limitations and conditions on the right of such Senior
Indebtedness to exercise the rights of Designated Senior Indebtedness).


 


“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”,
when used with respect to the Fixed Rate Securities, means June 15, 2008
and when used with respect to the Floating Rate Securities, means June 15,
2013.


 


“Fixed Rate Securities”
means any of the Company’s 1% Convertible Subordinated Notes Due June 15, 2008,
as amended or supplemented from time to time, that are issued under this
Indenture.


 


“Floating Rate
Securities” means any of the Company’s Floating Rate Convertible Subordinated
Notes Due June 15, 2013, as amended or supplemented from time to time, that are
issued under this Indenture.


 


“GAAP” means generally
accepted accounting principles in the United States of America as in effect as
of the date of this Indenture, including those set forth in (1) the
opinions and pronouncements of the Accounting Principles Board of the American Institute
of Certified Public Accountants, (2) the statements and pronouncements of
the Financial Accounting Standards Board, (3) such other statements


 


2

















 


by such other entity as
approved by a significant segment of the accounting profession and (4) the
rules and regulations of the SEC governing the inclusion of financial
statements (including pro forma financial statements) in registration
statements filed under the Securities Act and periodic reports required to be
filed pursuant to Section 13 of the Exchange Act, including opinions and
pronouncements in staff accounting bulletins and similar written statements
from the accounting staff of the SEC.


 


“Global Securities” means
Securities that are in substantially the forms attached hereto as Exhibit A-1
or Exhibit A-2 and that include the information and schedule called
for by footnotes 1, 3 and 4 thereof and which are deposited with the
Depositary or its custodian and registered in the name of the Depositary or its
nominee.


 


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


 


“Indebtedness” means,
with respect to any Person, without duplication, (a) all indebtedness,
obligations and other liabilities (contingent or otherwise) of such Person (i)
for borrowed money (including obligations of such Person in respect of
overdrafts, foreign exchange contracts, currency exchange agreements, interest
rate protection agreements, and any loans or advances from banks, whether or
not evidenced by notes or similar instruments) or (ii) evidenced by credit or
loan agreements, bonds, debentures, notes or similar instruments (whether or
not the recourse of the lender is to the whole of the assets of such Person or
to only a portion thereof) (other than any accounts payable or other accrued
current liability or obligation incurred in the ordinary course of business in
connection with the obtaining of materials or services), (b) all
reimbursement obligations and other liabilities (contingent or otherwise) of
such Person with respect to letters of credit, bank guarantees or bankers’
acceptances, (c) all obligations and liabilities (contingent or otherwise)
of such Person in respect of leases of such Person required, in conformity with
GAAP, to be accounted for as capitalized lease obligations on the balance sheet
of such Person, (d) all obligations and liabilities (contingent or
otherwise) of such Person under any lease or related document (including a
purchase agreement, conditional sale or other title retention agreement) in
connection with the lease of real property or improvements thereon (or any
personal property included as part of any such lease) which provides that such
Person is contractually obligated to purchase or cause a third party to
purchase the leased property or pay an agreed upon residual value of the leased
property to the lessor (whether or not such lease transaction is characterized
as an operating lease or a capitalized lease in accordance with GAAP),
(e) all obligations (contingent or otherwise) of such Person with respect
to any interest rate or other swap, cap, floor or collar agreement, hedge
agreement, forward contract, or other similar instrument or agreement or
foreign currency hedge, exchange, purchase or similar instrument or agreement;
(f) all direct or indirect guarantees, or similar agreements by such
Person in respect of, and obligations or liabilities of such Person to purchase
or otherwise acquire or otherwise assure a creditor against loss in respect of,
indebtedness, obligations or liabilities of another Person of the kinds
described in clauses (a) through (e), and (g) any and all deferrals,
renewals, extensions, refinancings and refundings of, or amendments,
modifications or supplements to, any indebtedness, obligation or liability of
the kinds described in clauses (a) through (f).


 


“Indenture” means this
Indenture as amended or supplemented from time to time pursuant to the terms of
this Indenture.


 


“Initial Purchasers”
means Banc of America Securities LLC, Credit Suisse First Boston LLC, Merrill
Lynch, Pierce, Fenner & Smith Incorporated and Morgan Stanley & Co.
Incorporated.


 


3

















 


“Interest” on any
Security shall refer to interest and Additional Interest thereon, unless the
context otherwise requires.


 


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


 


“Officers’ Certificate”
means a certificate signed by two Officers; provided, however,
that for purposes of Sections 4.11 and 6.3, “Officers’ Certificate” means
a certificate signed by the principal executive officer, principal financial
officer or principal accounting officer of the Company and by one other
Officer.


 


“Opinion of Counsel”
means a written opinion from legal counsel. 
The counsel may be an employee of or counsel to the Company or the
Trustee.


 


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


 


“Principal” or
“principal” of a debt security, including the Securities, means the principal
of the security plus, when appropriate, the premium, if any, on the security.


 


“Redemption
Date” or “redemption date” means the date specified for redemption of the
Floating Rate Securities in accordance with the terms of the Floating Rate
Securities and this Indenture.


 


“Redemption Price” or
“redemption price” has the meaning set forth in paragraph 19 of the Floating
Rate Securities.


 


“Registration Rights
Agreement” means the Registration Rights Agreement dated as of June 19, 2003,
between the Company and the Initial Purchasers.


 


“Representative” means
the (a) indenture trustee or other trustee, agent or representative for
any Senior Indebtedness or (b) with respect to any Senior Indebtedness
that does not have any such trustee, agent or other representative, (i) in
the case of such Senior Indebtedness issued pursuant to an agreement providing
for voting arrangements as among the holders or owners of such Senior Indebtedness,
any holder or owner of such Senior Indebtedness acting with the consent of the
required persons necessary to bind such holders or owners of such Senior
Indebtedness and (ii) in the case of all other such Senior Indebtedness,
the holder or owner of such Senior Indebtedness.


 


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


 


“Restricted Security”
means a Security required to bear the restricted legend set forth in the form
of Securities set forth in Exhibits A-1 and A-2 of this Indenture.


 


“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.


 


4

















 


“SEC” means the
Securities and Exchange Commission.


 


“Securities” means any of
the Company’s Fixed Rate Securities and Floating Rate Securities or any of them
(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.


 


“Senior Indebtedness”
means the principal of, premium, if any, interest (including any interest
accruing subsequent to the commencement of any bankruptcy or similar
proceeding, whether or not a claim for post-petition interest is allowed as a
claim in any such proceeding) and rent payable on or in connection with, and
all fees, costs, expenses and other amounts accrued or due on or in connection
with, Indebtedness of the Company whether secured or unsecured, absolute or
contingent, due or to become due, outstanding on the date of this Indenture or
thereafter created, incurred, assumed, guaranteed or in effect guaranteed by
the Company (including all deferrals, renewals, extensions or refundings of, or
amendments, modifications or supplements to, the foregoing), unless in the case
of any particular Indebtedness the instrument creating or evidencing the same
or the assumption or guarantee thereof expressly provides that such
Indebtedness shall not be senior in right of payment to the Securities or
expressly provides that such Indebtedness is “pari passu” or “junior” to the
Securities. Notwithstanding the foregoing, the term Senior Indebtedness shall
not include (i) any Indebtedness of the Company to any majority-owned
Subsidiary of the Company (other than Indebtedness of the Company arising by
reason of guarantees by the Company of Indebtedness of any such Subsidiary to a
Person that is not a Subsidiary of the Company) or (ii) the Securities.


 


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


 


“Subsidiary” means, in
respect of any Person, any corporation, association, partnership or other
business entity of which more than 50% of the total voting power of shares of
Capital Stock or other interests (including partnership interests) entitled
(without regard to the occurrence of any contingency) to vote in the election
of directors, managers, general partners or trustees thereof is at the time
owned or controlled, directly or indirectly, by (i) such Person;
(ii) such Person and one or more Subsidiaries of such Person; or
(iii) one or more Subsidiaries of such Person.


 


“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 as provided in
Section 11.3, and except to the extent any amendment to the Trust
Indenture Act expressly provides for application of the Trust Indenture Act as
in effect on another date.


 


“Trading Day” means a day
during which trading in securities generally occurs on the Nasdaq National
Market (or, if the Common Stock is not quoted on the Nasdaq National Market, on
the principal market on which the Common Stock is then traded), other than a
day on which a material suspension of or limitation on trading is imposed that
affects either the Nasdaq National Market (or, if applicable, such


 


5

















 


other market) in its
entirety or only the shares of Common Stock (by reason of movements in price
exceeding limits permitted by the relevant market on which the shares are
traded or otherwise) or on which the Nasdaq National Market (or, if applicable,
such other market) cannot clear the transfer of shares due to an event beyond
the Company’s control.


 


“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 assigned to the Corporate Trust
Office, and also, with respect to a particular matter, any other officer to
whom such matter is referred because of such officer’s knowledge of and
familiarity with the particular subject.


 


“Unrestricted
Certificated Security” means a Certificated Security that is not a Restricted
Security.


 


“Unrestricted Global
Security” means a Global Security that is not a Restricted Security.


 


“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.”


 


“Voting Stock” of a
Person means all classes of Capital Stock or other interests (including
partnership interests) of such Person then outstanding and normally entitled
(without regard to the occurrence of any contingency) to vote in the election
of directors.


 


SECTION 1.2. OTHER DEFINITIONS.


 


	
  Term

  	
   

  	
  Defined in Section

  
	
  “Agent Members”

  	
   

  	
  2.1

  	
  (b)

  
	
  “Bankruptcy
  Law”

  	
   

  	
  8.1

  	
   

  
	
  “Change
  in Control”

  	
   

  	
  3.8

  	
  (a)

  
	
  “Change
  in Control Purchase Date”

  	
   

  	
  3.8

  	
  (a)

  
	
  “Change
  in Control Purchase Notice”

  	
   

  	
  3.8

  	
  (c)

  
	
  “Change
  in Control Purchase Price”

  	
   

  	
  3.8

  	
  (a)

  
	
  “Closing
  Price”

  	
   

  	
  4.6

  	
  (d)

  
	
  “Company
  Notice”

  	
   

  	
  3.8

  	
  (a)

  
	
  “Company
  Order”

  	
   

  	
  2.2

  	
   

  
	
  “Conversion Agent”

  	
   

  	
  2.3

  	
   

  
	
  “Conversion
  Date”

  	
   

  	
  4.2

  	
   

  
	
  “Conversion
  Price”

  	
   

  	
  4.6

  	
   

  
	
  “Current
  Market Price”

  	
   

  	
  4.6

  	
  (d)

  
	
  “Custodian”

  	
   

  	
  8.1

  	
   

  
	
  “DTC”

  	
   

  	
  2.1

  	
  (a)

  
	
  “Depositary”

  	
   

  	
  2.1

  	
  (a)

  
	
  “Determination
  Date”

  	
   

  	
  4.6

  	
  (c)

  
	
  “Event of Default”

  	
   

  	
  8.1

  	
   

  
	
  “Expiration
  Date”

  	
   

  	
  4.6

  	
  (c)

  
	
  “Expiration Time”

  	
   

  	
  4.6

  	
  (c)

  



 


6

















 


	
  Term

  	
   

  	
  Defined in Section

  
	
  “Instrument”

  	
   

  	
  8.1

  	
  (6)

  
	
  “Legal
  Holiday”

  	
   

  	
  12.7

  	
   

  
	
  “Legend”

  	
   

  	
  2.12

  	
  (a)

  
	
  “Notice
  of Default”

  	
   

  	
  8.1

  	
  (6)

  
	
  “Paying
  Agent”

  	
   

  	
  2.3

  	
   

  
	
  “Payment
  Blockage Notice”

  	
   

  	
  5.2

  	
   

  
	
  “Primary
  Registrar”

  	
   

  	
  2.3

  	
   

  
	
  “Purchase
  Agreement”

  	
   

  	
  2.1

  	
   

  
	
  “Purchased
  Shares”

  	
   

  	
  4.6

  	
  (c)

  
	
  “QIB”

  	
   

  	
  2.1

  	
   

  
	
  “Registrar”

  	
   

  	
  2.3

  	
   

  
	
  “Trigger Event”

  	
   

  	
  4.6

  	
  (c)

  
	
  “Triggering Distribution”

  	
   

  	
  4.6

  	
  (c)

  
	
  “Unissued Shares”

  	
   

  	
  3.8

  	
  (a)

  



 


SECTION
1.3. 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 Indenture shall also include those provisions of the TIA required to
be included herein by the provisions of the Trust Indenture Reform Act of
1990.  The following TIA terms used in
this Indenture have the following meanings:


 


“indenture securities”
means the Securities;


 


“indenture security
holder” means a Securityholder;


 


“indenture to be
qualified” means this Indenture;


 


“indenture trustee” or
“institutional trustee” means the Trustee; and “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 1.4. RULES OF CONSTRUCTION.


 


Unless the context
otherwise requires:


 


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


 


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


 


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


 


7

















 


(D)                  provisions apply to successive
events and transactions;


 


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


 


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


 


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


 


(H)                  “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 2.1. FORM AND DATING.


 


The Securities and the
Trustee’s certificate of authentication shall be substantially in the
respective forms set forth in Exhibits A-1 and A-2, which are incorporated
in and made part of this Indenture. The Securities may have notations, legends
or endorsements required by law, stock exchange rule or usage.  The Company shall provide any such notations,
legends or endorsements to the Trustee in writing.  Each Security shall be dated the date of its authentication.  The Securities are being offered and sold by
the Company pursuant to a Purchase Agreement, dated May 29, 2003 (the “Purchase
Agreement”), between the Company and the Initial Purchasers, in
transactions exempt from, or not subject to, the registration requirements of
the Securities Act.


 


(a)   Restricted Global Securities.  All of the Securities are initially being
offered and sold to qualified institutional buyers as defined in Rule 144A
(collectively, “QIBs” or individually, each a “QIB”) in reliance on
Rule 144A under the Securities Act and shall be issued initially in the
form of one or more Restricted Global Securities, which shall be deposited on
behalf of the purchasers of the Securities represented thereby with the
Trustee, at its Corporate Trust Office, as custodian for the depositary, The
Depository Trust Company (“DTC”) (such depositary, or any successor
thereto, being hereinafter referred to as the “Depositary”), and registered
in the name of its nominee, Cede & Co., 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.  Each Global Security shall represent such of
the outstanding Securities as shall be specified therein and each shall provide
that it shall represent the aggregate amount of outstanding Securities from
time to time endorsed thereon and that the aggregate 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.   Any adjustment of the
aggregate principal amount of a Global Security to reflect the amount of any
increase or decrease in the amount of outstanding Securities represented
thereby shall be made by the Trustee in accordance with instructions given by
the Holder thereof as required by Section 2.12 hereof and shall be made on
the records of the


 


8

















 


Trustee and the
Depositary.  Upon effectiveness of a
shelf registration statement pursuant to the Registration Rights Agreement, the
Company shall issue, and the Trustee shall authenticate, a Global Security with
respect to each series of Securities in the form of Exhibit A-1 or A-2 hereof,
as applicable, which Global Securities shall not bear the Legend.  Upon any sale of a beneficial interest in a
Restricted Global Security pursuant to such registration statement and delivery
of appropriate evidence thereof to the Trustee or any sale or transfer of a
beneficial interest in connection with which the Legend may be removed in
accordance with this Indenture, the Trustee shall increase the principal amount
of the unrestricted Global Security by the amount of such sale (or, as
permitted by this Indenture, issued an unrestricted Certificated Security) and
likewise reduce the principal amount of the Restricted Global Security.


 


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 (A) 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 (B) 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 2.1(c), authenticate and deliver
initially one or more Global Securities that (i) shall be registered in
the name of the Depositary or its nominee, (ii) shall be delivered by the
Trustee to the Depositary or pursuant to the Depositary’s instructions and
(iii) shall bear legends substantially in the form of the first paragraph
of Exhibits A-1 and A-2 hereto.


 


SECTION
2.2. EXECUTION AND AUTHENTICATION.


 


An Officer shall sign the
Securities for the Company by manual or facsimile signature attested by the
manual or facsimile signature of the Secretary or an Assistant Secretary of the
Company.  Typographic and other minor errors
or defects in any such facsimile signature shall not affect the validity or
enforceability of any Security which has been authenticated and delivered by
the Trustee.


 


If an Officer whose
signature is on a Security no longer holds that office at the time the Trustee
authenticates the Security, the Security shall be valid nevertheless.


 


A Security shall not be
valid until an authorized signatory of the Trustee manually signs the
certificate of authentication on the Security. 
The signature shall be conclusive evidence that the Security has been
authenticated under this Indenture.


 


The Trustee shall
authenticate and make available for delivery Securities for original issue in
an aggregate principal amount of up to $175,000,000 Fixed Rate Securities
(subject to increase by up to $25,000,000 in the event the Initial Purchasers
exercise the option to purchase additional Securities granted to them in the
Purchase Agreement) and an aggregate principal amount of up to $175,000,000
Floating Rate Securities (subject to increase by up to $25,000,000  in the event the Initial Purchasers exercise
the option to purchase additional Securities granted to them in the Purchase
Agreement) upon receipt of a written order or orders of the Company signed by
an Officer of the Company (a “Company


 


9

















 


Order”).  The Company Order shall specify the amount
of Securities to be authenticated, shall provide that all such Securities will
be represented by a Restricted Global Security and the date on which each
original issue of Securities is to be authenticated.  The aggregate principal amount of Securities outstanding at any
time of either series may not exceed the amounts in the foregoing sentence,
except as provided in Section 2.7. 
The Floating Rate Securities and the Fixed Rate Securities shall each
constitute a separate series of Securities issued hereunder and each such
series shall vote separately as its own class under the Indenture, except where
otherwise provided.


 


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.


 


The Securities shall be
issuable only in registered form without coupons and only in denominations of
$1,000 principal amount and any integral multiple thereof.


 


SECTION 2.3. REGISTRAR, PAYING AGENT AND CONVERSION
AGENT.


 


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
offices or agencies where Securities may be presented 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.


 


The Company shall enter
into an appropriate agency agreement with any Agent not a party to this
Indenture.  The agreement shall
implement the provisions of this Indenture that relate to such Agent.  The Company shall notify the Trustee of the
name and address of any 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 Section 6.1 and Article 10).


 


The Company hereby
initially designates the Trustee as Paying Agent, Registrar, Custodian and
Conversion Agent, and the office or agency of the Trustee in the Borough of
Manhattan, The City of New York (which shall initially be the office of the
Trustee located at 100 Wall Street, Suite 1600, New York, New York 10005) as one
such office or agency of the Company for each of the aforesaid purposes.


 


SECTION 2.4. PAYING AGENT TO HOLD
MONEY IN TRUST.


 


Prior to 11:00 a.m., New
York City time, on each due date of the principal of, interest or Additional
Interest, if any, on any Securities, the Company shall deposit with a Paying
Agent a sum sufficient to pay such principal, interest or Additional Interest,
if any, so becoming due.  Subject to


 


10

















 


Section 5.2, a
Paying Agent shall hold in trust for the benefit of Securityholders or the
Trustee all money held by the Paying Agent for the payment of principal of,
interest or Additional Interest, if any, on the Securities, and shall notify
the Trustee of any default by the Company (or any other obligor on the
Securities) in making any such payment. 
If the Company or an Affiliate of the Company acts as Paying Agent, it
shall, before 11:00 a.m., New York City time, on each due date of the principal
of, interest or Additional Interest, if any, on any Securities, segregate the
money and hold it as a separate trust fund. 
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.


 


SECTION 2.5. SECURITYHOLDER LISTS.


 


The Trustee shall
preserve in as current a form as is reasonably practicable the most recent list
available to it of the names and addresses of Securityholders.  If the Trustee is not the Primary Registrar,
the Company shall furnish to the Trustee on or before each interest payment
date, and at such other times as the Trustee may request in writing, a list in
such form and as of such date as the Trustee may reasonably require of the
names and addresses of Securityholders.


 


SECTION 2.6. TRANSFER AND EXCHANGE.


 


(a)   Subject to compliance with any applicable
additional requirements contained in Section 2.12, 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; 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 in the form included in Exhibits A-1 and A-2, as
applicable, and in form satisfactory to the Registrar, 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 2.3, 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 tax or other governmental charge that may be imposed in
relation thereto, and provided,  that this sentence shall not
apply to any exchange pursuant to Section  2.10, 2.12(a), 3.5, 4.2 (last
paragraph) or 11.5.


 


Neither the Company, any
Registrar nor the Trustee shall be required to exchange or register a transfer
of any Securities or portions thereof in respect of which a Change in Control
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).


 


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 transfer or exchange.


 


(b)   Any Registrar appointed pursuant to
Section 2.3 hereof shall provide to the Trustee such information as the
Trustee may reasonably require in connection with the delivery by such
Registrar of Securities upon transfer or exchange of Securities.


 


11

















 


(c)   Each Holder of a Security agrees to indemnify
the Company and the Trustee against any liability that may result from the
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.


 


SECTION 2.7. REPLACEMENT SECURITIES.


 


If any mutilated Security
is surrendered to the Company, a Registrar or the Trustee, or the Company, a
Registrar and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Security, and there is delivered to the
Company, the applicable Registrar and the Trustee such security or indemnity as
will be required by them to save each of them harmless, then, in the absence of
notice to the Company, such Registrar or the Trustee that such Security has
been acquired by a bona fide purchaser, the Company shall execute, and upon its
written request the Trustee shall authenticate and deliver, in exchange for any
such mutilated Security or in lieu of any such destroyed, lost or stolen
Security, a new Security of like tenor and principal amount, bearing a number
not contemporaneously outstanding.


 


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


 


Upon the issuance of any
new Securities under this Section 2.7, 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 reasonable expenses (including the
reasonable fees and expenses of the Trustee or the Registrar) in connection
therewith.


 


Every new Security issued
pursuant to this Section 2.7 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.


 


The provisions of this
Section 2.7 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 2.8. OUTSTANDING SECURITIES.


 


Securities outstanding at
any time are all Securities authenticated by the Trustee, except for those
canceled by it, those converted pursuant to Article 4, those delivered to
it for cancellation or surrendered for transfer or exchange and those described
in this Section 2.8 as not outstanding.


 


If a Security is replaced
pursuant to Section 2.7, it ceases to be outstanding unless the Company
receives proof satisfactory to it that the replaced Security is held by a bona
fide purchaser.


 


If a Paying Agent (other
than the Company or an Affiliate of the Company) holds on a Redemption Date,
Change in Control Purchase Date or the Final Maturity Date money sufficient to
pay the principal of (including premium, if any), interest and Additional
Interest, if any, on Securities (or portions thereof) payable on that date,
then on and after such Redemption Date, Change in Control


 


12

















 


Purchase Date or the
Final Maturity Date, as the case may be, such Securities (or portions thereof,
as the case may be) shall cease to be outstanding and interest and Additional
Interest, if any, on them shall cease to accrue.


 


Subject to the
restrictions contained in Section 2.9, a Security does not cease to be
outstanding because the Company or an Affiliate of the Company holds the
Security.


 


SECTION 2.9. TREASURY SECURITIES.


 


In determining whether the Holders of the required principal amount of
Securities have concurred in any 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 notice, direction, waiver or consent, only Securities
which a Trust Officer of the Trustee actually knows are so owned shall be so
disregarded.  Securities so owned which
have been pledged in good faith shall not be disregarded if the pledgee
establishes to the satisfaction of the Trustee the pledgee’s right so to act
with respect to the Securities and that the pledgee is not the Company or any
other obligor on the Securities or any Affiliate of the Company or of such
other obligor.


 


SECTION 2.10. 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.


 


SECTION 2.11. 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 or its agent any Securities
surrendered to them for transfer, exchange, payment or conversion.  The Trustee and no one else shall cancel, in
accordance with its standard procedures, all Securities surrendered for
transfer, exchange, payment, conversion or cancellation and shall deliver the
canceled Securities to the Company.  All
Securities which are purchased or otherwise acquired by the Company or any of
its Subsidiaries prior to the Final Maturity Date may be delivered to the
Trustee for cancellation or, if permitted by law, be resold.  The Company may not hold or resell such
Securities or issue any new Securities to replace any Securities cancelled or
any Securities that any Holder has converted pursuant to Article 4.


 


SECTION 2.12. LEGEND; ADDITIONAL TRANSFER AND EXCHANGE REQUIREMENTS.


 


(a)   If Securities are issued upon the transfer,
exchange or replacement of Securities subject to restrictions on transfer and
bearing the legends set forth on the forms of Securities attached hereto as
Exhibits A-1 and A-2 (collectively, the “Legend”), or if a request is
made to remove the Legend on a Security, the Securities so issued shall bear
the Legend, or the Legend shall not be removed, as the case


 


13

















 


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 Legend nor the
restrictions on transfer set forth therein are required to ensure that
transfers thereof comply with the provisions of Rule 144 under the
Securities Act or that such Securities are not “restricted” within the meaning
of Rule 144 under the Securities Act; provided  that no such
evidence need be supplied in connection with the sale of such Security pursuant
to a registration statement that is effective at the time of such sale.  Upon (i) provision of such satisfactory
evidence if requested, or (ii) notification by the Company to the Trustee
and Registrar of the sale of such Security pursuant to a registration statement
that is effective at the time of such sale, the Trustee, at the written
direction of the Company, shall authenticate and deliver a Security that does
not bear the Legend. If the Legend is removed from the face of a Security and
the Security is subsequently held by an Affiliate of the Company, the Legend
shall be reinstated.


 


(b)   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 2.12.


 


(c)   Subject to the succeeding paragraph, every
Security shall be subject to the restrictions on transfer provided in the
Legend.  Whenever any Restricted
Security is presented or surrendered for registration of transfer or for
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 forms
set forth in Exhibits A-1 and A-2, as applicable, 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 Legend upon
the transferability of any Security shall cease and terminate when such
Security has been sold pursuant to an effective registration statement under
the Securities Act or transferred in compliance with Rule 144 under the
Securities Act (or any successor provision thereto) or, if earlier, upon the
expiration of the holding period applicable to sales thereof under
Rule 144(k) under the Securities Act (or any successor provision). Any
Security as to which such restrictions on transfer shall have expired in
accordance with their terms or shall have terminated may, upon a surrender of
such Security for exchange to the Registrar in accordance with the provisions
of this Section 2.12 (accompanied, in the event that such restrictions on
transfer have terminated by reason of a transfer in compliance with
Rule 144 or any successor provision, by, if requested by the Company or
the Registrar, an opinion of counsel reasonably acceptable to the Company and
addressed to the Company 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
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 or registration statement.


 


14

















 


(e)   As used in the preceding two paragraphs of
this Section 2.12, the term “transfer” encompasses any sale, pledge,
transfer, hypothecation or other disposition of any Security.


 


(f)    The provisions of clauses (i), (ii), (iii),
(iv) and (v) below shall apply only to Global Securities:


 


(i)            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 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 a successor Depositary
is not appointed by the Company within 90 days after receipt of such
notice or the Company becomes aware of such failure of registration,
(B) the Company has provided the Depositary with written notice that it
has decided to discontinue use of the system of book-entry transfer through the
Depositary or any successor Depositary or (C) an Event of Default has
occurred and is continuing with respect to the Securities. Any Global Security
exchanged pursuant to clauses (A) or (B) above shall be so exchanged in whole
and not in part, and any Global Security exchanged pursuant to clause (C)
above may be exchanged in whole or from time to time in part as directed by the
Depositary. Any Security issued in exchange for a Global Security or any
portion thereof shall be a Global Security; provided that any such Security so
issued that is registered in the name of a Person other than the Depositary or
a nominee thereof shall not be a Global Security.


 


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


 


(iii)          Subject to the provisions of
clause (v) below, 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.


 


15

















 


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


 


(v)           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 prevent the Company, the Trustee or any
agent of the Company or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by the Depositary or such
nominee, as the case may be, or impair, as between the Depositary, its Agent
Members and any other Person on whose behalf an Agent Member may act, the
operation of customary practices of such Persons governing the exercise of the
rights of a holder of any Security.


 


SECTION 2.13. 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 notices of purchase as a
convenience to Holders; provided  that any such notice may state
that no representation is made as to the correctness of such numbers either as
printed on the Securities or as contained in any notice of a purchase 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 promptly notify the Trustee of any change in the “CUSIP” numbers.


 


ARTICLE 3

REDEMPTION AND PURCHASES


 


SECTION 3.1. RIGHT
TO REDEEM; NOTICES TO TRUSTEE.


 


The Fixed Rate
Securities may not be redeemed by the Company prior to the Final Maturity Date.


 


The Company,
at its option, may redeem the Floating Rate Securities in accordance with the
provisions of paragraph 14 of the Floating Rate Securities.


 


The Company
may not redeem the Floating Rate Securities if it has failed to pay any
interest or premium on the Floating Rate Securities and such failure to pay is
continuing.


 


The Company
shall give the notice to the Trustee provided for in this Section 3.1 by a
Company Order, at least 45 days before the Redemption Date (unless a shorter
notice shall be satisfactory to the Trustee).


 


SECTION 3.2.
SELECTION OF SECURITIES TO BE REDEEMED.


 


If less than
all the outstanding Floating Rate Securities are to be redeemed, the Trustee
shall select the Floating Rate Securities to be redeemed in principal amounts
of $1,000 or integral multiples of


 


16

















 


$1,000 by lot, pro rata or by another method the Trustee considers fair
and appropriate. The Trustee shall make the selection at least 30 days but not
more than 60 days before the Redemption Date from outstanding Floating Rate
Securities not previously called for redemption. The Trustee may select for
redemption portions of the principal amount of Floating Rate Securities that
have denominations larger than $1,000.


 


Provisions of
this Indenture that apply to Floating Rate Securities called for redemption
also apply to portions of Floating Rate Securities called for redemption. The
Trustee shall notify the Company promptly of the Floating Rate Securities or
portions of Floating Rate Securities to be redeemed.


 


If any
Floating Rate Security selected for partial redemption is converted in part
before termination of the conversion right with respect to the portion of the
Floating Rate Security so selected, the converted portion of such Floating Rate
Security shall be deemed (so far as may be) to be the portion selected for
redemption. Floating Rate Securities which have been converted during a
selection of Floating Rate Securities to be redeemed may be treated by the
Trustee as outstanding for the purpose of such selection.


 


SECTION 3.3. NOTICE
OF REDEMPTION.


 


At least 30
days but not more than 60 days before a Redemption Date, the Company shall
mail, or shall cause to be mailed, a notice of redemption by first-class mail,
postage prepaid, to each Holder of Floating Rate Securities to be redeemed.


 


The notice
shall identify the Floating Rate Securities to be redeemed and shall state:


 


•                  the aggregate principal amount of the
Securities to be redeemed;


 


•                  the Redemption Date (which shall be a
Business Day);


 


•                  the Redemption Price including the
amount of accrued and unpaid interest to be paid on such Floating Rate
Securities;


 


•                  the then current Conversion Price;


 


•                  the name and address of the Paying
Agent and Conversion Agent;


 


•                  that Floating Rate Securities called
for redemption may be converted at any time before the close of business on the
date that is the last Business Day prior to the Redemption Date unless the
Company fails to pay the Redemption Price;


 


•                  that Holders who want to convert
Floating Rate Securities must satisfy the requirements set forth in paragraph 6
of the Securities;


 


•                  that Floating Rate Securities called
for redemption must be surrendered to the Paying Agent to collect the
Redemption Price;


 


17

















 


•                  if fewer than all the outstanding
Floating Rate Securities of such series are to be redeemed, the certificate
numbers, if any, and principal amounts of the particular Floating Rate
Securities to be redeemed;


 


•                  that, unless the Company defaults in
making payment of such Redemption Price, interest on Floating Rate Securities
called for redemption will cease to accrue on and after the Redemption Date;
and


 


•                  the CUSIP number of the Floating Rate
Securities.


 


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 three Business Days prior to the date
by which such notice of redemption must be given to Holders in accordance with
this Section 3.3.  Concurrently with the
mailing of any such notice of redemption, the Company shall issue a press
release announcing such redemption, the form and content of which shall be
determined by the Company.


 


SECTION 3.4. EFFECT
OF NOTICE OF REDEMPTION.


 


Once notice of
redemption is given, Floating Rate Securities called for redemption become due
and payable on the Redemption Date and at the Redemption Price stated in the
notice except for Floating Rate Securities which 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, plus
accrued and unpaid interest to, but excluding, the Redemption Date.  If the Redemption Date falls after an
interest payment record date and on or before an interest payment date, then
the interest payment will be payable to the Holders who present the Floating
Rate Securities for redemption.


 


On and after
the Redemption Date, unless the Company defaults in the deposit of the
redemption price, interest will cease to accrue on the Floating Rate Securities
or any portion of the Floating Rate Securities called for redemption, the
conversion right with respect to the Floating Rate Securities or any portion of
the Floating Rate Securities called for redemption will lapse and all other
rights of the Holder will terminate other than the right to receive the
Redemption Price, without interest from the Redemption Date, on surrender of
the Floating Rate Securities.


 


SECTION 3.5.
DEPOSIT OF REDEMPTION PRICE.


 


Prior to 12:00
p.m. (New York City time) on the Redemption Date, the Company shall deposit
with the Paying Agent (or the Trustee) money sufficient to pay the Redemption
Price of and accrued and unpaid interest on all Floating Rate Securities to be
redeemed on that date other than Floating Rate Securities or portions of
Floating Rate Securities called for redemption which on or prior thereto have
been delivered by the Company to the Trustee for cancellation or have been
converted.  The Paying Agent shall as promptly
as practicable return to the Company any money not required for that purpose
because of conversion of Floating Rate Securities pursuant to Article 4. If
such money is then held by the Company in trust and is not required for such
purpose it shall be discharged from such trust.


 


18

















 


SECTION 3.6.
SECURITIES REDEEMED IN PART.


 


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


 


SECTION 3.7.
[Intentionally Omitted].


 


SECTION 3.8. PURCHASE OF
SECURITIES AT OPTION OF THE HOLDER UPON CHANGE IN CONTROL.


 


(a)   If at any time that Securities remain
outstanding there shall occur a Change in Control, Securities shall be
purchased by the Company at the option of the Holders, as of the date that is
30 Business Days after the occurrence of the Change in Control (the
“Change in Control Purchase Date”) at a purchase price equal to 100% of the
principal amount of the Securities, together with accrued and unpaid interest
and Additional Interest, if any, to, but excluding, the Change in Control
Purchase Date (the “Change in Control Purchase Price”), subject to satisfaction
by or on behalf of any Holder of the requirements set forth in
subsection (c) of this Section 3.8.


 


A “Change in Control”
shall be deemed to have occurred if any of the following occurs after the date
hereof (whether or not such transaction is pursuant to Article 7):


 


(1)   any “person” or “group” (as such terms are
defined below) is or becomes the “beneficial owner” (as defined below) of
shares of Voting Stock of the Company representing 50% or more of the total
voting power of all outstanding Voting Stock of the Company or has the power,
directly or indirectly, to elect a majority of the members of the Board of
Directors of the Company; or


 


(2)   the Company consolidates with, or merges with
or into, another Person or the Company sells, assigns, conveys, transfers,
leases or otherwise disposes of all or substantially all of the assets of the
Company, or any Person consolidates with, or merges with or into, the Company,
in any such event other than pursuant to a transaction in which the Persons
that “beneficially owned” (as defined below) shares of Voting Stock of the
Company immediately prior to such transaction “beneficially own” (as defined
below) shares of Voting Stock of the Company representing at least a majority
of the total voting power of all outstanding Voting Stock of the surviving or
transferee Person; or


 


(3)   the holders of capital stock of the Company
approve any plan or proposal for the liquidation or dissolution of the Company
(whether or not otherwise in compliance with the terms hereof).


 


For the purpose of the
definition of “Change in Control”, (i) ”person” and “group” have the
meanings given such terms under Section 13(d) and 14(d) of the Exchange
Act or any successor provision to either of the foregoing, and the term “group”
includes any group acting for the purpose of acquiring, holding or disposing of
securities within the meaning of Rule 13d-5(b)(1) under the Exchange Act
(or any successor provision thereto), (ii) a “beneficial owner” shall be
determined in accordance with Rule 13d-3 under the


 


19

















 


Exchange Act, as in
effect on the date of this Indenture, except that the number of shares of
Voting Stock of the Company shall be deemed to include, in addition to all
outstanding shares of Voting Stock of the Company and Unissued Shares deemed to
be held by the “person” or “group” (as such terms are defined above) or other
Person with respect to which the Change in Control determination is being made,
all Unissued Shares deemed to be held by all other Persons, and (iii) the
terms “beneficially owned” and “beneficially own” shall have meanings correlative
to that of “beneficial owner”.  The term
“Unissued Shares” means shares of Voting Stock not outstanding that are subject
to options, warrants, rights to purchase or conversion privileges exercisable
within 60 days of the date of determination of a Change in Control.


 


Notwithstanding anything
to the contrary set forth in this Section 3.8, a Change in Control will
not be deemed to have occurred if either:


 


(1)   the Closing Price (determined in accordance
with Section 4.6(d) of this Indenture) of the Common Stock for any five Trading
Days during the ten Trading Days immediately preceding the Change in Control is
at least equal to 105% of the Conversion Price in effect on such Trading Day;
or


 


(2)   in the case of a merger or consolidation, at
least 50% of the consideration by value in the merger or consolidation
constituting the Change in Control consists of common stock or American
Depositary Receipts (or other securities representing common equity interests)
and any associated rights traded on a United States national securities
exchange or quoted on the Nasdaq National Market (or which will be so traded or
quoted when issued or exchanged in connection with such Change in Control) and
as a result of such transaction or transactions at least 50% of the value of the
consideration for which the Securities become convertible consists of such
common stock or American Depositary Receipts (or other securities representing
common equity interests) and associated rights.  The value of common stock, American Depositary Receipts or other
securities representing common equity interests shall be the closing price
therefor on the date of such merger or consolidation on the principal U.S.
trading market therefor, and the value of other consideration shall be the fair
market value thereof on such date.


 


(b)   Within 10 Business Days after the occurrence
of a Change in Control, the Company shall mail a written notice (“Company
Notice”) of the Change in Control to the Trustee and to each Holder
(and to beneficial owners as required by applicable law).  The notice shall include the form of a
Change in Control Purchase Notice to be completed by the Holder and shall
state:


 


(1)         the date of such Change in Control and,
briefly, the terms, conditions and events causing such Change in Control;


 


(2)         the date by which the Change in Control
Purchase Notice pursuant to this Section 3.8 must be given;


 


(3)         the Change in Control Purchase Date;


 


(4)         the Change in Control Purchase Price;


 


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


 


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


 


20

















 


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


 


(8)         the Conversion Price and any
adjustments thereto;


 


(9)         that Securities as to which a Change in
Control Purchase Notice has been given may be converted into Common Stock
pursuant to Article 4 of this Indenture only to the extent that the Change
in Control 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 3.8;


 


(11)       the procedures for withdrawing a Change
in Control Purchase Notice, including a form of notice of withdrawal;


 


(12)       that the Holder must satisfy the
requirements set forth in the Securities in order to convert the Securities;
and


 


(13)       whether the Change in Control Purchase
Price will be paid in cash, Common Stock or American Depositary Receipts (or
other securities representing common equity interests), or a combination
thereof and, if a combination thereof, the percentage that it will pay in cash
or shares of Common Stock or such other securities.


 


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 procedures of the Depositary
applicable to the repurchase of Global Securities.


 


In the event the Company
has elected to pay the Change in Control Purchase Price (or a specified
percentage thereof) with shares of Common Stock or other securities, the
Company Notice shall state, in addition to the items specified above, (i) that
each Holder will receive a number of shares of Common Stock or other securities
equal to the quotient obtained by dividing (x) the portion of the Change
in Control Purchase Price to be paid in shares of Common Stock or other
securities, by (y) 97% of the average of the Closing Prices of the Common
Stock or such other securities for the 15 Trading Days immediately preceding and
including the third Trading Day prior to the Repurchase Date (except any cash
amount to be paid in lieu of fractional shares); and (ii) that because the
market price of shares of common stock or other securities will be determined
prior to the Change in Control Purchase Date, Holders of the Securities will
bear the market risk with respect to the value of such securities to be
received from the date such market price is determined to the Change in Control
Purchase Date.


 


(c)   A Holder may exercise its rights specified in
subsection (a) of this Section 3.8 upon delivery of a written notice
(which shall be in substantially the form included in Exhibits A-1 and A-2
hereto, as applicable, 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 customary procedures) of the exercise of such
rights (a “Change in Control Purchase Notice”) to any Paying Agent at any
time prior to the close of business on the Business Day next preceding the
Change in Control Purchase Date.


 


21

















 


The delivery of such
Security to any Paying Agent (together with all necessary endorsements) at the
office of such Paying Agent shall be a condition to the receipt by the Holder
of the Change in Control Purchase Price therefor.


 


The Company shall
purchase from the Holder thereof, pursuant to this Section 3.8, a portion
of a Security if the principal amount of such portion is $1,000 or an integral
multiple of $1,000.  Provisions of the
Indenture that apply to the purchase of all of a Security pursuant to
Sections 3.8 through 3.14 also apply to the purchase of such portion of
such Security.


 


Notwithstanding anything
herein to the contrary, any Holder delivering to a Paying Agent the Change in
Control Purchase Notice contemplated by this subsection (c) shall have the
right to withdraw such Change in Control 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 next
preceding the Change in Control Purchase Date by delivery of a written notice of
withdrawal to the Paying Agent in accordance with Section 3.10.


 


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


 


Anything herein to the
contrary notwithstanding, in the case of Global Securities, any Change in
Control 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.


 


If the Change in Control
Purchase Date falls after an interest payment record date and on or before an
interest payment date, then the interest payment will be payable to the Holder
who presents a Security for purchase.


 


SECTION 3.9. COMPANY’S RIGHT TO
ELECT MANNER OF PAYMENT OF CHANGE IN CONTROL PURCHASE PRICE FOR PAYMENT.


 


(a)   The Company may elect to pay the Change in
Control Purchase Price of the Securities to be purchased on any Change in
Control Purchase Date pursuant to Section 3.2 in cash or Common Stock or, in
the case of a merger in which the Company is not the surviving corporation,
common stock or American Depositary Receipts (or other securities representing
common equity interests) of the surviving corporation or its direct or indirect
parent corporation, or any combination of cash and stock, subject to the
conditions set forth in this Section 3.9(a) and Section 3.9(b).  All Holders whose Securities are purchased
on a Change in Control Purchase Date pursuant to this Section 3.9 shall receive
the same percentage of cash or common stock or American Depositary Receipts (or
other securities representing common equity interests) in payment of the Change
in Control Purchase Price for such Securities, except (i) as provided in
Section 3.9(b) with regard to the payment of cash in lieu of fractional Common
Stock and (ii) in the event that the Company is unable to purchase the
Securities of a Holder or Holders for Common Stock because any necessary
qualifications or registrations of the common stock or American Depositary
Receipts (or other securities representing common equity interests) under
applicable state securities laws cannot be obtained, the Company may purchase
the Securities of such Holder or Holders for cash. The Company may not change
its election with respect to the consideration (or components or percentages of
components thereof) to be paid once the Company has given its Company Notice to
Securityholders except pursuant to this Section 3.9(a) or pursuant to Section
3.9(b) in the event of a


 


22

















 


failure to satisfy, prior to the close of business on
the Change in Control Purchase Date, any condition to the payment of the Change
in Control Purchase Price, in whole or in part, in common stock or American Depositary
Receipts (or other securities representing common equity interests), in which
case the Change in Control Purchase Price shall be paid in cash.


 


(b)   In each case in which the Company has
elected, pursuant to Section 3.9(a), to pay all or a portion of the Change in
Control Purchase Price with common stock or American Depositary Receipts (or
other securities representing common equity interests), the number of common
stock or American Depositary Receipts (or other securities representing common
equity interests) that shall be payable shall be equal to the quotient obtained
by dividing (i) the relevant amount of the Change in Control Purchase Price to
be paid in common stock or American Depositary Receipts (or other securities
representing common equity interests) by (ii) 97% of the average of the Closing
Prices of the common stock or American Depositary Receipts (or other securities
representing common equity interests) for the 15 Trading Days immediately
preceding and including the third Trading Day prior to the Repurchase Date (the
“Market
Price”), subject to the next succeeding paragraph.


 


In lieu of delivering a
fractional common stock or American Depositary Receipts (or other securities
representing common equity interests) in payment of the Change in Control
Purchase Price, the Company will pay cash for the Market Price of the
fractional share or American Depositary Receipt (or other security representing
common equity interests).  If a Holder
elects to have more than one Security purchased, the number of common stock or
American Depositary Receipts (or other securities representing common equity
interests) shall be based on the aggregate amount of Securities to be
purchased.


 


The Company’s right to
exercise its election to purchase Securities through the delivery of common
stock or American Depositary Receipts (or other securities representing common
equity interests) or a combination of common stock or American Depositary
Receipts (or other securities representing common equity interests) and cash, as
provided in Section 3.9(a) shall be conditioned upon:


 


•                  the Company’s not having given a
Company Notice of an election to pay entirely in cash and its timely giving of
a Company Notice of election to purchase all or a specified percentage of the
Securities with common stock or American Depositary Receipts (or other
securities representing common equity interests) as provided herein;


 


•                  the registration of the common stock
or American Depositary Receipts (or other securities representing common equity
interests) to be issued upon repurchase under the Securities Act and the
Exchange Act;


 


•                  any necessary qualification or
registration of the common stock or American Depositary Receipts (or other
securities representing common equity interests) to be issued upon repurchase
under applicable state securities laws or the availability of an exemption from
such qualification and registration;


 


•                  listing of the common stock or
American Depositary Receipts (or other securities representing common equity
interests) on a United States national securities exchange or quotation thereof
in an inter-dealer quotation system of any registered United States national
securities association; and


 


23

















 


•                  the receipt by the Trustee of an
Officers’ Certificate and an Opinion of Counsel each stating that the terms of
the delivery of the common stock or American Depositary Receipts (or other
securities representing common equity interests) are in conformity with this
Indenture, that the conditions above have been satisfied and that the
securities being issued will be validly issued, fully paid and non-assessable
and free of pre-emptive rights.  The
Officers’ Certificate shall also set forth the number of common stock or
American Depositary Receipts (or other securities representing common equity
interests) to be delivered for each $1,000 Principal Amount of Securities and
the daily prices of the common stock or American Depositary Receipts (or other
securities representing common equity interests) used to calculate the average
of the Closing Prices of the common stock or American Depositary Receipts (or
other securities representing common equity interests).


 


If the foregoing
conditions are not satisfied with respect to a Holder or Holders prior to the
close of business on the last day prior to the Change in Control Purchase Date
and the Company has elected to purchase the Securities pursuant to this Section
3.9 through the delivery of common stock or American Depositary Receipts (or
other securities representing common equity interests), the Company shall pay
the entire Change in Control Purchase Price of the Securities of such Holder or
Holders in cash.


 


SECTION 3.10. EFFECT OF CHANGE IN
CONTROL PURCHASE NOTICE.


 


Upon receipt by any
Paying Agent of the Change in Control Purchase Notice specified in
Section 3.8(c), the Holder of the Security in respect of which such Change
in Control Purchase Notice was given shall (unless such Change in Control
Purchase Notice is withdrawn as specified below) thereafter be entitled to
receive the Change in Control Purchase Price with respect to such
Security.  Such Change in Control
Purchase Price shall be paid to such Holder promptly following the later of
(a) the Change in Control Purchase Date with respect to such Security (provided
the conditions in Section 3.8(c) have been satisfied) and (b) the
time of delivery of such Security to a Paying Agent by the Holder thereof in
the manner required by Section 3.8(c). 
Securities in respect of which a Change in Control Purchase Notice has
been given by the Holder thereof may not be converted into shares of Common
Stock pursuant to Article 4 on or after the date of the delivery of such
Change in Control Purchase Notice unless such Change in Control Purchase Notice
has first been validly withdrawn.


 


A Change in Control
Purchase Notice may be withdrawn by means of a written notice (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 Depositary’s
customary procedures) of withdrawal delivered by the Holder to a Paying Agent
at any time prior to the close of business on the Business Day immediately
preceding the Change in Control Purchase Date, specifying the principal amount
of the Security or portion thereof (which must be a principal amount of $1,000
or an integral multiple of $1,000 in excess thereof) with respect to which such
notice of withdrawal is being submitted.


 


SECTION 3.11. DEPOSIT OF CHANGE IN
CONTROL PURCHASE PRICE.


 


On or before 11:00 a.m.
New York City time on the Change in Control Purchase Date, the Company shall
deposit with the Trustee or with a Paying Agent (other than the Company or an
Affiliate of the Company) an amount of money (in immediately available funds if
deposited on such Change in Control Purchase Date) or securities sufficient to
pay the aggregate Change in Control Purchase Price of


 


24

















 


all the Securities or portions thereof that are to be
purchased as of such Change in Control Purchase Date.  The manner in which the deposit required by this
Section 3.11 is made by the Company shall be at the option of the Company,
provided  that such deposit shall be made in a manner such that
the Trustee or a Paying Agent shall have immediately available funds on the
Change in Control Purchase Date.


 


If a Paying Agent holds,
in accordance with the terms hereof, money or securities sufficient to pay the
Change in Control Purchase Price of any Security for which a Change in Control
Purchase Notice has been tendered and not withdrawn in accordance with this
Indenture then, on the Change in Control Purchase Date, such Security will
cease to be outstanding and the rights of the Holder in respect thereof shall
terminate (other than the right to receive the Change in Control Purchase Price
as aforesaid).  The Company shall
publicly announce the principal amount of Securities purchased as a result of
such Change in Control on or as soon as practicable after the Change in Control
Purchase Date.


 


The Company shall pay any
documentary, stamp or similar issue or transfer tax due on any issuance of such
Securities.


 


SECTION
3.12. SECURITIES PURCHASED IN PART.


 


Any Security that is to
be purchased only in part shall be surrendered at the office of a Paying Agent,
and promptly after the Change in Control Purchase Date the Company shall
execute and the Trustee shall authenticate and deliver to the Holder of such
Security, without service charge, a new Security or Securities, of 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.


 


SECTION 3.13.
COMPLIANCE WITH SECURITIES LAWS UPON PURCHASE OF SECURITIES


 


In connection with any
offer to purchase or purchase of Securities under Section 3.2, the Company
shall (a) comply with Rule 13e-4 and Rule 14e-1 (or any
successor to either such Rule), if applicable, under the Exchange Act,
(b) file the related 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 in connection with such offer to
purchase or purchase of Securities, all so as to permit the rights of the
Holders and obligations of the Company under Sections 3.2 through 3.5 to
be exercised in the time and in the manner specified therein.


 


SECTION 3.14. REPAYMENT TO THE
COMPANY.


 


To the extent that the
aggregate amount of cash or securities deposited by the Company pursuant to
Section 3.4 exceeds the aggregate Change in Control Purchase Price
(including interest and Additional Interest, if any, thereon) of the Securities
or portions thereof that the Company is obligated to purchase, then promptly
after the Change in Control Purchase Date the Trustee or a Paying Agent, as the
case may be, shall return any such excess cash or securities to the Company.


 


25

















 


ARTICLE
4

CONVERSION


 


SECTION 4.1.
CONVERSION PRIVILEGE


 


Subject to the further
provisions of this Article 4 and the applicable paragraph of the
Securities, a Holder of a Security may convert the principal amount of such
Security (or any portion thereof equal to $1,000 or any integral multiple of
$1,000 in excess thereof) into Common Stock (and any associated rights
represented thereby, including rights affected thereto pursuant to the
Company’s Rights Plan in effect on the date hereof) at any time prior to the
close of business on the Final Maturity Date, at the Conversion Price then in
effect; provided, however, that, if such Security is submitted or
presented for purchase or redemption pursuant to Article 3, such
conversion right shall terminate at the close of business on the Business Day
immediately preceding the Redemption Date or the Change in Control Purchase
Date for such Security (unless the Company shall default in making the
Redemption Price or Change in Control Purchase Price payment when due, in which
case the conversion right shall terminate at the close of business on the date
such default is cured and such Security is purchased).  The number of shares of Common Stock
issuable upon conversion of a Security shall be determined by dividing the
principal amount of the Security or portion thereof surrendered for conversion
by the Conversion Price in effect on the Conversion Date.  The initial Conversion Price is set forth in
the form of the Securities of each series and is subject to adjustment as
provided in this Article 4.


 


Provisions of this
Indenture that apply to conversion of all of a Security also apply to
conversion of a portion of a Security.


 


A Security in respect of
which a Holder has delivered a Change in Control Purchase Notice pursuant to
Section 3.8(c) exercising the option of such Holder to require the Company
to purchase such Security may be converted only if such Change in Control
Purchase Notice is withdrawn by a written notice of withdrawal delivered to a
Paying Agent prior to the close of business on the Business Day immediately
preceding the Change in Control Purchase Date in accordance with
Section 3.9.


 


A Holder of Securities is
not entitled to any rights of a holder of Common Stock until such Holder has
converted its Securities to Common Stock, and only to the extent such
Securities are deemed to have been converted into Common Stock pursuant to this
Article 4.


 


SECTION 4.2. CONVERSION PROCEDURE.


 


To convert a Security, a
Holder must (a) complete and manually sign the conversion notice on the
back of the Security and deliver such notice to a Conversion Agent,
(b) surrender the Security to a Conversion Agent, (c) furnish
appropriate endorsements and transfer documents if required by a Registrar or a
Conversion Agent, and (d) pay any transfer or similar tax, if
required.  The date on which the Holder
satisfies all of those requirements is the “Conversion Date.”  As soon as practicable after the Conversion
Date, the Company shall deliver to the Holder through a Conversion Agent a
certificate for the number of whole shares of Common Stock issuable upon the
conversion and cash in lieu of any fractional shares pursuant to
Section 4.3.  Anything herein to the
contrary notwithstanding, in the case of Global Securities, conversion notices
may be delivered and such Securities may be surrendered for conversion in
accordance with the Applicable Procedures as in effect from time to time.


 


26

















 


The person in whose name
the Common Stock certificate is registered shall be deemed to be a stockholder
of record on the Conversion Date; provided, however, that no
surrender of a Security on any date when the stock transfer books of the
Company shall be closed shall be effective to constitute the person or persons
entitled to receive the shares of Common Stock upon such conversion as the
record holder or holders of such shares of Common Stock on such date, but such
surrender shall be effective to constitute the person or persons entitled to
receive such shares of Common Stock as the record holder or holders thereof for
all purposes at the close of business on the next succeeding day on which such
stock transfer books are open; provided, further, that such
conversion shall be at the Conversion Price in effect on the Conversion Date as
if the stock transfer books of the Company had not been closed.  Upon conversion of a Security, such person
shall no longer be a Holder of such Security. 
No payment or adjustment will be made for accrued interest (except as
set forth below) or for dividends or distributions on shares of Common Stock
issued upon conversion of a Security. 
Accrued interest shall be deemed paid through delivery of Common Stock
upon conversion.


 


Interest or Additional
Interest, if any, shall be payable to such registered Holder notwithstanding
the conversion of a Security after a regular record date and prior to the
interest payment date, subject to the provisions of this Indenture relating to
the payment of defaulted interest or Additional Interest, if any, by the
Company.  Securities so 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, if any, shall also be accompanied by payment in funds
acceptable to the Company of an amount equal to the interest or Additional
Interest, if any, payable on such interest payment date on the principal amount
of such Security then being converted. 
The preceding sentence does not apply, however, if (1) the Company has
specified a Redemption Date that is after a record date for an interest payment
but on or prior to the corresponding interest payment date or (2) any overdue
interest exists at the time of conversion with respect to the notes converted
(in which case the Holder will not be required to pay the Company for the
amount of the interest payment that the Holder will receive that represents
overdue interest, but will be required to pay the Company for the amount of the
interest payment that the Holder will receive that represents payment of
interest that is not overdue).  Except
as otherwise provided in this Section 4.2, no payment or adjustment will
be made for accrued interest or Additional Interest, if any, on a converted
Security.  If the Company defaults in
the payment of interest or Additional Interest, if any, payable on such
interest payment date, the Company shall promptly repay such funds to such
Holder.


 


Nothing in this
Section shall affect the right of a Holder in whose name any Security is
registered at the close of business on a record date to receive the interest
and Additional Interest, if any, payable on such Security on the interest
payment date in accordance with the terms of this Indenture, the Securities and
the Registration Rights Agreement.  If a
Holder converts more than one Security at the same time, the number of shares
of Common Stock issuable upon the conversion shall be based on the aggregate
principal amount of Securities converted.


 


Upon surrender of a
Security that is converted in part, the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder, a new Security equal in principal
amount to the unconverted portion of the Security surrendered.


 


SECTION 4.3. FRACTIONAL SHARES.


 


The Company will not
issue fractional shares of Common Stock upon conversion of Securities.  In lieu thereof, the Company will pay an
amount in cash for the current market value of the fractional shares.  The cash amount paid in lieu of fractional
shares shall be determined, (calculated to the nearest


 


27

















 


1/1000th of a share) by multiplying the
Closing Price (determined as set forth in Section 4.6(d)) of the Common
Stock on the Trading Day immediately prior to the Conversion Date by such
fractional share and rounding the product to the nearest whole cent.


 


SECTION 4.4. TAXES ON CONVERSION.


 


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


 


SECTION 4.5. COMPANY TO PROVIDE
STOCK.


 


The Company shall, prior
to issuance of any Securities hereunder, and from time to time as may be
necessary, reserve, out of its authorized but unissued Common Stock, a
sufficient number of shares of Common Stock to permit the conversion of all
outstanding Securities into shares of Common Stock.


 


All shares of Common
Stock delivered upon conversion of the Securities shall be newly issued shares,
shall be duly authorized, validly issued, fully paid and nonassessable and
shall be free from preemptive or similar rights and free of any lien or adverse
claim.


 


The Company will endeavor
promptly to comply with all federal and state securities laws regulating the
offer and delivery of shares of Common Stock upon conversion of Securities, if
any, and will list or cause to have quoted such shares of Common Stock on each
national securities exchange or on the Nasdaq National Market or other
over-the-counter market or such other market on which the Common Stock is then
listed or quoted.  Any Common Stock
issued upon conversion of a Security hereunder which at the time of conversion
was a Restricted Security will also be a Restricted Security.


 


SECTION
4.6. ADJUSTMENT OF CONVERSION PRICE.


 


The conversion price as
stated in paragraph 6 of each of the Securities (the “Conversion Price”) shall be
adjusted from time to time by the Company as follows:


 


(a)   In case the Company shall (i) pay a
dividend on its Common Stock in shares of Common Stock, (ii) make a
distribution on its Common Stock in shares of Common Stock,
(iii) subdivide its outstanding Common Stock into a greater number of
shares, or (iv) combine its outstanding Common Stock into a smaller number of
shares, the Conversion Price in effect immediately prior thereto shall be
adjusted so that the Holder of any Security thereafter surrendered for
conversion shall be entitled to receive that number of shares of Common Stock
which it would have owned had such Security been converted immediately prior to
the happening of such event.  An
adjustment made pursuant to this subsection (a) shall become effective
immediately after the record date in the case of a dividend or distribution and
shall become effective immediately after the effective date in the case of
subdivision of combination.


 


28

















 


(b)   In case the Company shall issue rights or
warrants to all or substantially all holders of its Common Stock entitling them
(for a period of not more than 60 days after such issuance) to subscribe
for or purchase shares of Common Stock (or securities convertible into Common
Stock) at a price per share (or having a conversion price per share) less than
the Current Market Price per share of Common Stock (as determined in accordance
with subsection (d) of this Section 4.6) on the record date for the
determination of stockholders entitled to receive such rights or warrants, the
Conversion Price in effect immediately prior thereto shall be adjusted so that
the same shall equal the price determined by multiplying the Conversion Price
in effect immediately prior to such record date by a fraction of which the
numerator shall be the number of shares of Common Stock outstanding on such
record date plus the number of shares which the aggregate offering price of the
total number of shares of Common Stock so offered (or the aggregate conversion
price of the convertible securities so offered, which shall be determined by
multiplying the number of shares of Common Stock issuable upon conversion of
such convertible securities by the conversion price per share of Common Stock
pursuant to the terms of such convertible securities) would purchase at the
Current Market Price per share (as defined in subsection (d) of this
Section 4.6) of Common Stock on such record date, and of which the
denominator shall be the number of shares of Common Stock outstanding on such
record date plus the number of additional shares of Common Stock offered (or
into which the convertible securities so offered are convertible).  Such adjustment shall be made successively
whenever any such rights or warrants are issued, and shall become effective
immediately after such record date.  If
at the end of the period during which such rights or warrants are exercisable
not all rights or warrants shall have been exercised, the adjusted Conversion
Price shall be immediately readjusted to what it would have been based upon the
number of additional shares of Common Stock actually issued (or the number of
shares of Common Stock issuable upon conversion of convertible securities
actually issued).


 


(c)   In case the Company shall distribute to all
or substantially all holders of its Common Stock any shares of capital stock of
the Company (other than Common Stock), evidences of indebtedness or other
assets (including securities of any person other than the Company but excluding
(1) dividends or distributions paid exclusively in cash referred to in
Section 4.6(c)(2) below or (2) dividends or distributions referred to in
subsection (a) of this Section 4.6), or shall distribute to all or
substantially all holders of its Common Stock rights or warrants to subscribe for
or purchase any securities (excluding those rights and warrants referred to in
subsection (b) of this Section 4.6), then in each such case the
Conversion Price shall be adjusted so that the same shall equal the price
determined by multiplying the current Conversion Price by a fraction of which
the numerator shall be the Current Market Price per share (as defined in
subsection (d) of this Section 4.6) of the Common Stock on the record
date mentioned below less the fair market value on such record date (as
determined in good faith by the Board of Directors, whose determination shall
be evidenced by an Officers’ Certificate delivered to the Trustee) of the
portion of the capital stock, evidences of indebtedness or other assets so
distributed or of such rights or warrants applicable to one share of Common
Stock (determined on the basis of the number of shares of Common Stock
outstanding on the record date), and of which the denominator shall be the
Current Market Price per share (as defined in subsection (d) of this
Section 4.6) of the Common Stock on such record date.  Such adjustment shall be made successively
whenever any such distribution is made and shall become effective immediately
after the record date for the determination of stockholders entitled to receive
such distribution.


 


In the event the then
fair market value (as so determined) of the portion of the capital stock,
evidences of indebtedness or other assets so distributed or of such rights or
warrants applicable to one share of Common Stock is equal to or greater than
the Current Market Price per share of the Common Stock on such record date, in
lieu of the foregoing adjustment, adequate provision shall be made so that


 


29

















 


each holder of a Security shall have the right to
receive upon conversion the amount of capital stock, evidences of indebtedness
or other assets so distributed or of such rights or warrants such holder would
have received had such holder converted each Security on such record date.  In the event that such dividend or
distribution is not so paid or made, the Conversion Price shall again be
adjusted to be the Conversion Price which would then be in effect if such
dividend or distribution had not been declared.  If the Board of Directors determines the fair market value of any
distribution for purposes of this Section 4.6(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
Current Market Price of the Common Stock.


 


Rights (including rights
issued under the Company’s Rights Plan as in effect on the date hereof) or
warrants distributed by the Company to all holders of Common Stock entitling
the holders thereof to subscribe for or purchase shares of the Company’s
Capital Stock (either initially or under certain circumstances), which rights
or warrants, until the occurrence of a specified event or events (“Trigger
Event”):  (i) are deemed to be
transferred with such shares of Common Stock; (ii) are not exercisable;
and (iii) are also issued in respect of future issuances of Common Stock,
shall be deemed not to have been distributed for purposes of this
Section 4.6 (and no adjustment to the Conversion Price under this Section 4.6
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 to the Conversion Price shall be made under this
Section 4.6(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
with respect to new rights or warrants with such rights (and a termination or
expiration of the existing rights or warrants without exercise by any of the
holders thereof).  In addition, in the
event of any distribution (or deemed distribution) of rights or warrants, or
any Trigger Event or other event (of the type described in the preceding
sentence) with respect thereto that was counted for purposes of calculating a
distribution amount for which an adjustment to the Conversion Price under this
Section 4.6 was made, (1) in the case of any such rights or warrants
which shall all have been redeemed or repurchased without exercise by any
holders thereof, the Conversion Price shall be readjusted upon such final
redemption or repurchase to give effect to such distribution or Trigger Event,
as the case may be, as though it were a cash distribution, equal to the per
share redemption or repurchase price received by a holder or holders of Common
Stock with respect to such rights or warrants (assuming such holder had
retained such rights or warrants), made to all holders of Common Stock as of
the date of such redemption or repurchase, and (2) in the case of such
rights or warrants which shall have expired or been terminated without exercise
by any holders thereof, the Conversion Price shall be readjusted as if such
rights and warrants had not been issued.


 


(1)    In case the Company shall, by dividend
or otherwise, at any time distribute (a “Triggering Distribution”) to all or
substantially all holders of its Common Stock cash in an aggregate amount that,
together with the aggregate amount of (A) any cash and the fair market
value (as determined in good faith by the Board of Directors, whose
determination shall be evidenced by an Officers’ Certificate delivered to the
Trustee) of any other consideration payable in respect of any tender offer by
the Company or a Subsidiary of the Company for Common Stock consummated within
the 12 months preceding the date of payment of the Triggering Distribution
and in respect of which no Conversion Price adjustment pursuant to this
Section 4.6 has been made and (B) all other cash distributions to all
or substantially all holders of its Common Stock made within the 12 months
preceding the date of payment of the Triggering Distribution and in respect of
which no Conversion Price adjustment pursuant to this


 


30

















 


Section 4.6 has been made, exceeds an amount
equal to 10.0% of the product of the Current Market Price per share of Common
Stock (as determined in accordance with subsection (d) of this
Section 4.6) on the Business Day (the “Determination Date”)
immediately preceding the day on which such Triggering Distribution is declared
by the Company multiplied by the number of shares of Common Stock outstanding
on the Determination Date (excluding shares held in the treasury of the
Company), the Conversion Price shall be reduced so that the same shall equal
the price determined by multiplying such Conversion Price in effect immediately
prior to the Determination Date by a fraction of which the numerator shall be
the Current Market Price per share of the Common Stock (as determined in
accordance with subsection (d) of this Section 4.6) on the
Determination Date less the sum of the aggregate amount of cash and the
aggregate fair market value (determined as aforesaid in this Section 4.6(c)(1))
of any such other consideration so distributed, paid or payable within such 12
months (including, without limitation, the Triggering Distribution) applicable
to one share of Common Stock (determined on the basis of the number of shares
of Common Stock outstanding on the Determination Date) and the denominator
shall be such Current Market Price per share of the Common Stock (as determined
in accordance with subsection (d) of this Section 4.6) on the
Determination Date, such reduction to become effective immediately prior to the
opening of business on the day following the date on which the Triggering
Distribution is paid.


 


(2)   In case any tender offer made by the Company
or any of its Subsidiaries for Common Stock shall expire and such tender offer
(as amended upon the expiration thereof) shall involve the payment of aggregate
consideration in an amount (determined as the sum of the aggregate amount of
cash consideration and the aggregate fair market value (as determined in good
faith by the Board of Directors, whose determination shall be evidenced by an
Officers’ Certificate delivered to the Trustee thereof) of any other
consideration) that, together with the aggregate amount of (A) any cash
and the fair market value (as determined in good faith by the Board of Directors,
whose determination shall be evidenced by an Officers’ Certificate delivered to
the Trustee) of any other consideration payable in respect of any other tender
offers by the Company or any Subsidiary of the Company for Common Stock
consummated within the 12 months preceding the date of the Expiration Date (as
defined below) and in respect of which no Conversion Price adjustment pursuant
to this Section 4.6 has been made and (B) all cash distributions to
all or substantially all holders of its Common Stock made within the 12 months
preceding the Expiration Date and in respect of which no Conversion Price
adjustment pursuant to this Section 4.6 has been made, exceeds an amount
equal to 10.0% of the product of the Current Market Price per share of Common
Stock (as determined in accordance with subsection (d) of this
Section 4.6) as of the last date (the “Expiration Date”) tenders
could have been made pursuant to such tender offer (as it may be amended) (the
last time at which such tenders could have been made on the Expiration Date is
hereinafter sometimes called the “Expiration Time”) multiplied by the number
of shares of Common Stock outstanding (including tendered shares but excluding
any shares held in the treasury of the Company) at the Expiration Time, then,
immediately prior to the opening of business on the day after the Expiration
Date, the Conversion Price shall be reduced so that the same shall equal the
price determined by multiplying the Conversion Price in effect immediately
prior to the close of business on the Expiration Date by a fraction of which
the numerator shall be the product of the number of shares of Common Stock
outstanding (including tendered shares but excluding any shares held in the
treasury of the Company) at the Expiration Time multiplied by the Current
Market Price per share of the Common Stock (as determined in accordance with
subsection (d) of this Section 4.6) on the Trading Day next
succeeding the Expiration Date and the denominator shall be the sum of (x) the
aggregate consideration (determined as aforesaid) payable to stockholders based
on the acceptance (up to any maximum specified in the terms of the tender
offer) of all shares validly tendered and not withdrawn as of the Expiration
Time (the shares deemed so accepted, up to any such maximum, being referred to
as the “Purchased Shares”) and (y) the


 


31

















 


product of the number of shares of Common Stock
outstanding (less any Purchased Shares and excluding any shares held in the
treasury of the Company) at the Expiration Time and the Current Market Price
per share of Common Stock (as determined in accordance with subsection (d)
of this Section 4.6) on the Trading Day next succeeding the Expiration
Date, such reduction to become effective immediately prior to the opening of
business on the day following the Expiration Date.  In the event that the Company is obligated to purchase shares
pursuant to any such tender offer, but the Company is permanently prevented by
applicable law from effecting any or all such purchases or any or all such
purchases are rescinded, the Conversion Price shall again be adjusted to be the
Conversion Price which would have been in effect based upon the number of
shares actually purchased.  If the
application of this Section 4.6(c)(2) to any tender offer would result in
an increase in the Conversion Price, no adjustment shall be made for such
tender offer under this Section 4.6(c)(2).


 


(3)   For purposes of this Section 4.6(c), the
term “tender offer” shall mean and include both tender offers and exchange
offers, all references to “purchases” of shares in tender offers (and all
similar references) shall mean and include both the purchase of shares in
tender offers and the acquisition of shares pursuant to exchange offers, and
all references to “tendered shares” (and all similar references) shall mean and
include shares tendered in both tender offers and exchange offers.


 


(d)   For the purpose of any computation under
subsections (b) and (c) of this Section 4.6, the current market price
(the “Current
Market Price”) per share of Common Stock on any date shall be deemed
to be the average of the daily closing prices for the 30 consecutive
Trading Days commencing 45 Trading Days before (i) the Determination
Date or the Expiration Date, as the case may be, with respect to distributions
or tender offers under subsection (c) of this Section 4.6 or
(ii) the record date with respect to distributions, issuances or other
events requiring such computation under subsection (b) or (c) of this
Section 4.6.  The closing price
(the “Closing
Price”) for each day shall be the last reported sales price or, in
case no such reported sale takes place on such date, the average of the
reported closing bid and asked prices in either case on the Nasdaq National
Market or, if the Common Stock is not listed or admitted to trading on the
Nasdaq National Market, on the principal national securities exchange on which
the Common Stock is listed or admitted to trading or, if not listed or admitted
to trading on the Nasdaq National Market or any national securities exchange,
the last reported sales price of the Common Stock as quoted on NASDAQ or, in
case no reported sales takes place, the average of the closing bid and asked
prices as quoted on NASDAQ or any comparable system or, if the Common Stock is
not quoted on NASDAQ or any comparable system, the closing sales price or, in
case no reported sale takes place, the average of the closing bid and asked
prices, as furnished by any two members of the National Association of
Securities Dealers, Inc. selected from time to time by the Company for that
purpose.  If no such prices are
available, the Current Market Price per share shall be the fair value of a
share of Common Stock as determined in good faith by the Board of Directors
(which shall be evidenced by an Officers’ Certificate delivered to the
Trustee).


 


(e)   In any case in which this Section 4.6
shall require that an adjustment be made following a record date or a
Determination Date or Expiration Date, as the case may be, established for
purposes of this Section 4.6, the Company may elect to defer (but only
until five Business Days following the filing by the Company with the Trustee
of the certificate described in Section 4.9) issuing to the Holder of any
Security converted after such record date or Determination Date or Expiration
Date the shares of Common Stock and other capital stock of the Company issuable
upon such conversion over and above the shares of Common Stock and other
capital stock of the Company issuable upon such conversion only on the basis of
the Conversion Price prior to adjustment; and, in lieu of the shares the
issuance of which is so deferred, the Company shall issue or cause its transfer
agents to issue due bills or other appropriate


 


32

















 


evidence prepared by the Company of the right to
receive such shares.  If any
distribution in respect of which an adjustment to the Conversion Price is
required to be made as of the record date or Determination Date or Expiration
Date therefor is not thereafter made or paid by the Company for any reason, the
Conversion Price shall be readjusted to the Conversion Price which would then
be in effect if such record date had not been fixed or such effective date or
Determination Date or Expiration Date had not occurred.


 


SECTION 4.7. NO ADJUSTMENT.


 


No adjustment in the
Conversion Price shall be required if Holders may participate in the
transactions set forth in Section 4.6 above without converting.


 


No adjustment in the
Conversion Price shall be required unless the adjustment would require an
increase or decrease of at least 1% in the Conversion Price as last adjusted; provided,
however, that any adjustments which by reason of this Section 4.7 are
not required to be made shall be carried forward and taken into account in any
subsequent adjustment.  All calculations
under this Article 4 shall be made to the nearest one-tenth of a cent or
to the nearest one-hundredth of a share, as the case may be.


 


Except as otherwise
described in this Article 4, no adjustment in the Conversion Price shall be
required for the issuance of Common Stock or the right to purchase Common Stock
or any such convertible or exchangeable securities.


 


To the extent that the
Securities become convertible into the right to receive cash, no adjustment
need be made thereafter as to the cash. 
Interest will not accrue on the cash.


 


SECTION
4.8. ADJUSTMENT FOR TAX PURPOSES.


 


The Company shall, upon
15 days prior notice, be entitled to make such reductions in the Conversion
Price, in addition to those required by Section 4.6, as it in its
discretion shall determine to be advisable in order that any stock dividends,
subdivisions of shares, distributions of rights to purchase stock or securities
or distributions of securities convertible into or exchangeable for stock
hereafter made by the Company to its stockholders shall not be taxable.


 


SECTION 4.9. NOTICE OF ADJUSTMENT.


 


Whenever the Conversion
Price or conversion privilege is adjusted, the Company shall promptly mail to
Securityholders a notice of the adjustment and file with the Trustee an
Officers’ Certificate briefly stating the facts requiring the adjustment and
the manner of computing it.  Unless and
until the Trustee shall receive an Officers’ Certificate setting forth an
adjustment of the Conversion Price, the Trustee may assume without inquiry that
the Conversion Price has not been adjusted and that the last Conversion Price
of which it has knowledge remains in effect.


 


SECTION
4.10. NOTICE
OF CERTAIN TRANSACTIONS.


 


In the event that:


 


(1)   the Company takes any action which would
require an adjustment in the Conversion Price;


 


33

















 


(2)   the Company consolidates or merges with, or
transfers all or substantially all of its property and assets to, another
corporation and stockholders of the Company must approve the transaction; or


 


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


 


the Company shall mail to Holders and file with the
Trustee a notice stating the proposed record or effective date, as the case may
be.  The Company shall mail the notice
at least ten days before such date. 
Failure to mail such notice or any defect therein shall not affect the
validity of any transaction referred to in clause (1), (2) or (3) of this
Section 4.10.


 


SECTION
4.11. EFFECT OF RECLASSIFICATION, CONSOLIDATION, MERGER OR SALE ON CONVERSION
PRIVILEGE.


 


If any of the following
shall occur, namely:  (a) any
reclassification or change of shares of Common Stock issuable upon conversion
of the Securities (other than a change in par value, or from par value to no
par value, or from no par value to par value, or as a result of a subdivision
or combination, or any other change for which an adjustment is provided in
Section 4.6); (b) any consolidation or merger or combination to which
the Company is a party or (c) any sale or conveyance of all or
substantially all of the property and assets of the Company, directly or
indirectly, to any person, then the Company, or such successor, purchasing or
transferee corporation, as the case may be, shall, as a condition precedent to
such reclassification, change, combination, consolidation, merger, sale or
conveyance, execute and deliver to the Trustee a supplemental indenture
providing that the Holder of each Security then outstanding shall have the
right to convert such Security into the kind and amount of shares of stock and
other securities and property (including cash) receivable upon such
reclassification, change, combination, consolidation, merger, sale or
conveyance by a holder of the number of shares of Common Stock deliverable upon
conversion of such Security immediately prior to such reclassification, change,
combination, consolidation, merger, sale or conveyance based on the assumption
that the Holder would not have exercised any rights of election that the Holder
would have had as a Holder of Common Stock to select a particular type of
consideration.  Such supplemental indenture
shall provide for adjustments of the Conversion Price which shall be as nearly
equivalent as may be practicable to the adjustments of the Conversion Price
provided for in this Article 4. 
If, in the case of any such consolidation, merger, combination, sale or
conveyance, the stock or other securities and property (including cash)
receivable thereupon by a holder of Common Stock include shares of stock or
other securities and property of a person other than the successor, purchasing
or transferee corporation, as the case may be, in such consolidation, merger,
combination, sale or conveyance, then such supplemental indenture shall also be
executed by such other person and shall contain such additional provisions to
protect the interests of the Holders of the Securities as the Board of Directors
shall reasonably consider necessary by reason of the foregoing.  The provisions of this Section 4.11
shall similarly apply to successive reclassifications, changes, combinations,
consolidations, mergers, sales or conveyances.


 


In the event the Company
shall execute a supplemental indenture pursuant to this Section 4.11, the
Company shall promptly file with the Trustee (x) an Officers’ Certificate
briefly stating the reasons therefor, the kind or amount of shares of stock or
other securities or property (including cash) receivable by Holders of the
Securities upon the conversion of their Securities after any such
reclassification, change, combination, consolidation, merger, sale or
conveyance, any adjustment to be made with respect


 


34

















 


thereto and that all conditions precedent have been
complied with and (y) an Opinion of Counsel that all conditions precedent
have been complied with, and shall promptly mail notice thereof to all Holders.


 


SECTION 4.12. TRUSTEE’S DISCLAIMER.


 


The Trustee shall have no
duty to determine when an adjustment under this Article 4 should be made,
how it should be made or what such adjustment should be, but may accept as
conclusive evidence of that fact or the correctness of any such adjustment, and
shall be protected in relying upon, an Officers’ Certificate including the
Officers’ Certificate with respect thereto which the Company is obligated to
file with the Trustee pursuant to Section 4.9.  The Trustee makes no representation as to the validity or value
of any securities or assets issued upon conversion of Securities, and the
Trustee shall not be responsible for the Company’s failure to comply with any
provisions of this Article 4.


 


The Trustee shall not be
under any responsibility to determine the correctness of any provisions
contained in any supplemental indenture executed pursuant to Section 4.11,
but may accept as conclusive evidence of the correctness thereof, and shall be
fully protected in relying upon, the Officers’ Certificate with respect thereto
which the Company is obligated to file with the Trustee pursuant to
Section 4.11.


 


SECTION 4.13. VOLUNTARY REDUCTION.


 


The Company from time to
time may reduce the Conversion Price by any amount for any period of time if
the period is at least 20 days and if the reduction is irrevocable during the
period if our Board of Directors determines that such reduction would be in the
best interest of the Company, and the Company provides 15 days prior notice of
any reduction in the Conversion Price; provided, however, that in
no event may the Company reduce the Conversion Price to be less than the par
value of a share of Common Stock.


 


ARTICLE
5

SUBORDINATION


 


SECTION
5.1. AGREEMENT OF SUBORDINATION.


 


The Company covenants and
agrees, and each Holder of Securities issued hereunder by its acceptance
thereof likewise covenants and agrees, that all Securities shall be issued
subject to the provisions of this Article 5; and each Person holding any
Security, whether upon original issue or upon transfer, assignment or exchange
thereof, accepts and agrees to be bound by such provisions.


 


The payment of the
principal of, premium, if any, interest and Additional Interest, if any, on all
Securities (including, but not limited to, the Redemption Price and the Change
in Control Purchase Price with respect to the Securities subject to redemption
or purchase in accordance with Article 3 as provided in this Indenture)
issued hereunder shall, to the extent and in the manner hereinafter set forth,
be subordinated and subject in right of payment to the prior payment in full in
cash or other payment satisfactory to the holders of Senior Indebtedness of all
Senior Indebtedness, whether outstanding at the date of this Indenture or
thereafter incurred.


 


No provision of this
Article 5 shall prevent the occurrence of any default or Event of Default
hereunder.


 


35

















 


SECTION 5.2. PAYMENTS TO HOLDERS.


 


No payment shall
be made with respect to the principal of, or premium, if any, or interest or
Additional Interest, if any, on the Securities (including, but not limited to,
the Redemption Price and the Change in Control Purchase Price with respect to
the Securities subject to redemption or purchase in accordance with Article 3
as provided in this Indenture), except payments and distributions made by the
Trustee as permitted by the first or second paragraph of Section 5.5, if:


 


(i)            a default in the payment of
principal, premium, interest, rent or other obligations due on any Designated
Senior Indebtedness occurs and is continuing (or, in the case of Designated
Senior Indebtedness for which there is a period of grace, in the event of such
a default that continues beyond the period of grace, if any, specified in the
instrument or lease evidencing such Designated Senior Indebtedness), unless and
until such default shall have been cured or waived or shall have ceased to
exist; or


 


(ii)           a default, other than a payment
default, on a Designated Senior Indebtedness occurs and is continuing that then
permits holders of such Designated Senior Indebtedness to accelerate its
maturity and the Trustee receives a notice of the default (a “Payment
Blockage Notice”) from a Representative or holder of Designated
Senior Indebtedness or the Company.


 


Subject to the provisions
of Section 5.5, if the Trustee receives any Payment Blockage Notice
pursuant to clause (ii) above, no subsequent Payment Blockage Notice shall
be effective for purposes of this Section unless and until at least 365 days shall
have elapsed since the initial effectiveness of the immediately prior Payment
Blockage Notice.  No nonpayment default
that existed or was continuing on the date of delivery of any Payment Blockage
Notice to the Trustee (unless such default was waived, cured or otherwise
ceased to exist and thereafter subsequently reoccurred) shall be, or be made,
the basis for a subsequent Payment Blockage Notice.


 


The Company may and shall
resume payments on and distributions in respect of the Securities upon the
earlier of:


 


(a)   in the case of a default referred to in
clause (i) above, the date upon which the default is cured or waived or
ceases to exist, or


 


(b)   in the case of a default referred to in
clause (ii) above,  the earlier of
the date on which such default is cured or waived or ceases to exist or 179
days pass after the date on which the applicable Payment Blockage Notice is
received, unless this Article 5 otherwise prohibits the payment or
distribution at the time of such payment or distribution.


 


Upon any payment by the
Company, or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, to creditors upon any dissolution or
winding-up or liquidation or reorganization of the Company (whether voluntary
or involuntary) or in bankruptcy, insolvency, receivership or similar
proceedings, all amounts due or to become due upon all Senior Indebtedness
shall first be paid in full in cash, or other payments satisfactory to the
holders of Senior Indebtedness before any payment is made on account of the
principal of, premium, if any, interest or Additional Interest, if any, on the
Securities (except payments made pursuant to Article 10 from monies
deposited with the Trustee pursuant thereto prior to commencement of
proceedings for such dissolution, winding-up, liquidation or reorganization);
and upon any such dissolution or winding-up or liquidation or


 


36

















 


reorganization of the Company or bankruptcy,
insolvency, receivership or other proceeding, any payment by the Company, or
distribution of assets of the Company of any kind or character, whether in
cash, property or securities, to which the Holders of the Securities or the
Trustee would be entitled, except for the provision of this Article 5,
shall (except as aforesaid) be paid by the Company or by any receiver, trustee
in bankruptcy, liquidating trustee, agent or other Person making such payment
or distribution, or by the Holders of the Securities or by the Trustee under
this Indenture if received by them or it, directly to the holders of Senior
Indebtedness (pro rata to such holders on the basis of the respective amounts
of Senior Indebtedness held by such holders, or as otherwise required by law or
a court order) or their representative or representatives, or to the trustee or
trustees under any indenture pursuant to which any instruments evidencing any
Senior Indebtedness may have been issued, as their respective interests may
appear, to the extent necessary to pay all Senior Indebtedness in full in cash,
or other payment satisfactory to the holders of Senior Indebtedness, after
giving effect to any concurrent payment or distribution to or for the holders
of Senior Indebtedness, before any payment or distribution is made to the
Holders of the Securities or to the Trustee.


 


For purposes of this
Article 5, the words, “cash, property or securities” shall not be deemed
to include shares of stock of the Company as reorganized or readjusted, or
securities of the Company or any other corporation provided for by a plan of
reorganization or readjustment, the payment of which is subordinated at least
to the extent provided in this Article 5 with respect to the Securities to
the payment of all Senior Indebtedness which may at the time be outstanding; provided
that (i) the Senior Indebtedness is assumed by the new corporation,
if any, resulting from any reorganization or readjustment, and (ii) the
rights of the holders of Senior Indebtedness (other than leases which are not
assumed by the Company or the new corporation, as the case may be) are not,
without the consent of such holders, altered by such reorganization or
readjustment. The consolidation of the Company with, or the merger of the
Company into, another corporation or the liquidation or dissolution of the
Company following the conveyance, transfer or lease of all or substantially all
its property to another corporation upon the terms and conditions provided for
in Article 7 shall not be deemed a dissolution, winding-up, liquidation or
reorganization for the purposes of this Section 5.2 if such other
corporation shall, as a part of such consolidation, merger, conveyance,
transfer or lease, comply with the conditions stated in Article 7.


 


In the event of the
acceleration of the Securities because of an Event of Default, no payment or
distribution shall be made to the Trustee or any Holder of Securities in
respect of the principal of, premium, if any, interest or Additional Interest,
if any, on the Securities by the Company (including, but not limited to, the
Redemption Price or Change in Control Purchase Price with respect to the
Securities subject to redemption or purchase in accordance with Article 3
as provided in this Indenture), except payments and distributions made by the
Trustee as permitted by Section 5.5, until all Senior Indebtedness has
been paid in full in cash or other payment satisfactory to the holders of
Senior Indebtedness or such acceleration is rescinded in accordance with the
terms of this Indenture. If payment of the Securities is accelerated because of
an Event of Default, the Company shall promptly notify holders of Senior
Indebtedness of such acceleration.


 


In the event that,
notwithstanding the foregoing provisions, any payment or distribution of assets
of the Company of any kind or character, whether in cash, property or
securities (including, without limitation, by way of setoff or otherwise),
prohibited by the foregoing, shall be received by the Trustee or the Holders of
the Securities before all Senior Indebtedness is paid in full, in cash or other
payment satisfactory to the holders of Senior Indebtedness, or provision is
made for such payment thereof in accordance with its terms in cash or other
payment satisfactory to the holders of Senior Indebtedness, such payment or distribution
shall be held in trust for the benefit of and shall be paid over or delivered
to


 


37

















 


the holders of Senior Indebtedness or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any Senior Indebtedness
may have been issued, as their respective interests may appear, as calculated
by the Company, for application to the payment of all Senior Indebtedness
remaining unpaid to the extent necessary to pay all Senior Indebtedness in
full, in cash or other payment satisfactory to the holders of Senior
Indebtedness, after giving effect to any concurrent payment or distribution to
or for the holders of such Senior Indebtedness.


 


Nothing in this
Section 5.2 shall apply to claims of, or payments to, the Trustee under or
pursuant to Section 9.7.  This
Section 5.2 shall be subject to the further provisions of
Section 5.5.


 


SECTION
5.3. SUBROGATION OF SECURITIES.


 


Subject to the payment in
full, in cash or other payment satisfactory to the holders of Senior
Indebtedness, of all Senior Indebtedness, the rights of the Holders of the
Securities shall be subrogated to the extent of the payments or distributions
made to the holders of such Senior Indebtedness pursuant to the provisions of
this Article 5 (equally and ratably with the holders of all indebtedness
of the Company which by its express terms is subordinated to other indebtedness
of the Company to substantially the same extent as the Securities are
subordinated and is entitled to like rights of subrogation) to the rights of
the holders of Senior Indebtedness to receive payments or distributions of
cash, property or securities of the Company applicable to the Senior
Indebtedness until the principal, premium, if any, interest and Additional
Interest, if any, on the Securities shall be paid in full in cash or other
payment satisfactory to the holders of Senior Indebtedness; and, for the
purposes of such subrogation, no payments or distributions to the holders of
the Senior Indebtedness of any cash, property or securities to which the
Holders of the Securities or the Trustee would be entitled except for the
provisions of this Article 5, and no payment over pursuant to the
provisions of this Article 5, to or for the benefit of the holders of
Senior Indebtedness by Holders of the Securities or the Trustee, shall, as
between the Company, its creditors other than holders of Senior Indebtedness,
and the Holders of the Securities, be deemed to be a payment by the Company to
or on account of the Senior Indebtedness; and no payments or distributions of
cash, property or securities to or for the benefit of the Holders of the
Securities pursuant to the subrogation provisions of this Article 5, which
would otherwise have been paid to the holders of Senior Indebtedness shall be
deemed to be a payment by the Company to or for the account of the Securities.
It is understood that the provisions of this Article 5 are and are
intended solely for the purposes of defining the relative rights of the Holders
of the Securities, on the one hand, and the holders of the Senior Indebtedness,
on the other hand.


 


Nothing contained in this
Article 5 or elsewhere in this Indenture or in the Securities is intended
to or shall impair, as among the Company, its creditors other than the holders
of Senior Indebtedness, and the Holders of the Securities, the obligation of
the Company, which is absolute and unconditional, to pay to the Holders of the
Securities the principal of (and premium, if any), interest and Additional
Interest, if any, on the Securities as and when the same shall become due and
payable in accordance with their terms, or is intended to or shall affect the
relative rights of the Holders of the Securities and creditors of the Company
other than the holders of the Senior Indebtedness, nor shall anything herein or
therein prevent the Trustee or the Holder of any Security from exercising all
remedies otherwise permitted by applicable law upon default under this Indenture,
subject to the rights, if any, under this Article 5 of the holders of
Senior Indebtedness in respect of cash, property or securities of the Company
received upon the exercise of any such remedy.


 


38

















 


Upon any payment or distribution of assets of the Company referred to
in this Article 5, the Trustee, subject to the provisions of
Section 9.1, and the Holders of the Securities shall be entitled to rely
upon any order or decree made by any court of competent jurisdiction in which
such bankruptcy, dissolution, winding-up, liquidation or reorganization
proceedings are pending, or a certificate of the receiver, trustee in
bankruptcy, liquidating trustee, agent or other person making such payment or
distribution, delivered to the Trustee or to the Holders of the Securities, for
the purpose of ascertaining the persons entitled to participate in such
distribution, the holders of the Senior Indebtedness and other indebtedness of
the Company, the amount thereof or payable thereon and all other facts
pertinent thereto or to this Article 5.


 


SECTION
5.4. AUTHORIZATION TO EFFECT SUBORDINATION.


 


Each Holder of a
Security by the Holder’s acceptance thereof authorizes and directs the Trustee
on the Holder’s behalf to take such action as may be necessary or appropriate
to effectuate the subordination as provided in this Article 5 and appoints
the Trustee to act as the Holder’s attorney-in-fact for any and all such
purposes. If the Trustee does not file a proper proof of claim or proof of debt
in the form required in any proceeding referred to in Section 5.3 hereof
at least 30 days before the expiration of the time to file such claim, the
holders of any Senior Indebtedness or their representatives are hereby authorized
to file an appropriate claim for and on behalf of the Holders of the
Securities.


 


SECTION 5.5. NOTICE TO TRUSTEE.


 


The Company shall give
prompt written notice in the form of an Officers’ Certificate to a Trust
Officer of the Trustee and to any Paying Agent of any fact known to the Company
which would prohibit the making of any payment of monies to or by the Trustee
or any Paying Agent in respect of the Securities pursuant to the provisions of
this Article 5.  Notwithstanding
the provisions of this Article 5 or any other provision of this Indenture,
the Trustee shall not be charged with knowledge of the existence of any facts
which would prohibit the making of any payment of monies to or by the Trustee
in respect of the Securities pursuant to the provisions of this Article 5,
unless and until a Trust Officer of the Trustee shall have received written
notice thereof at the Corporate Trust Office from the Company (in the form of
an Officers’ Certificate) or a Representative or a Holder or Holders of Senior
Indebtedness or from any trustee thereof; and before the receipt of any such
written notice, the Trustee, subject to the provisions of Section 9.1,
shall be entitled in all respects to assume that no such facts exist; provided
that if on a date not less than one Business Day prior to the date upon
which by the terms hereof any such monies may become payable for any purpose
(including, without limitation, the payment of the principal of, or premium, if
any, interest or Additional Interest, if any, on any Security) the Trustee
shall not have received, with respect to such monies, the notice provided for
in this Section 5.5, then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to receive
such monies and to apply the same to the purpose for which they were received,
and shall not be affected by any notice to the contrary which may be received
by it on or after such prior date. Notwithstanding anything in this
Article 5 to the contrary, nothing shall prevent any payment by the
Trustee to the Holders of monies deposited with it pursuant to Article 10,
and any such payment shall not be subject to the provisions of Article 5.


 


The Trustee, subject to
the provisions of Section 9.1, shall be entitled to rely on the delivery
to it of a written notice by a Representative or a person representing himself
to be a holder of Senior Indebtedness (or a trustee on behalf of such holder)
to establish that such notice has been given by a Representative or a holder of
Senior Indebtedness or a trustee on behalf of any such holder or holders. In


 


39

















 


the event that the Trustee determines in good faith
that further evidence is required with respect to the right of any person as a
holder of Senior Indebtedness to participate in any payment or distribution
pursuant to this Article 5, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
Senior Indebtedness held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article 5, and if such
evidence is not furnished the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.


 


SECTION 5.6. TRUSTEE’S RELATION TO
SENIOR INDEBTEDNESS.


 


The Trustee in its
individual capacity shall be entitled to all the rights set forth in this
Article 5 in respect of any Senior Indebtedness at any time held by it, to
the same extent as any other holder of Senior Indebtedness, and nothing in
Section 9.11 or elsewhere in this Indenture shall deprive the Trustee of
any of its rights as such holder.


 


With respect to the
holders of Senior Indebtedness, the Trustee undertakes to perform or to observe
only such of its covenants and obligations as are specifically set forth in
this Article 5, and no implied covenants or obligations with respect to
the holders of Senior Indebtedness shall be read into this Indenture against
the Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness and, subject to the provisions of
Section 9.1, the Trustee shall not be liable to any holder of Senior
Indebtedness if it shall pay over or deliver to Holders of Securities, the
Company or any other person money or assets to which any holder of Senior
Indebtedness shall be entitled by virtue of this Article 5 or otherwise.


 


SECTION
5.7. NO IMPAIRMENT OF SUBORDINATION.


 


No right of any present
or future holder of any Senior Indebtedness to enforce subordination as herein
provided shall at any time in any way be prejudiced or impaired by any act or
failure to act on the part of the Company or by any act or failure to act, in
good faith, by any such holder, or by any noncompliance by the Company with the
terms, provisions and covenants of this Indenture, regardless of any knowledge
thereof which any such holder may have or otherwise be charged with.


 


SECTION
5.8. CERTAIN CONVERSIONS DEEMED PAYMENT.


 


For the purposes of this
Article 5 only, the issuance and delivery of junior securities upon
conversion of Securities in accordance with Article 4 and the
payment, issuance or delivery of cash, property or other securities upon
conversion of a Security shall not be deemed to constitute a payment or
distribution on account of the principal of such Security (or premium, if any)
or interest. For the purposes of this Section 5.8, the term “junior
securities” means (a) shares of any stock of any class of the
Company, or (b) securities of the Company which are subordinated in right
of payment to all Senior Indebtedness which may be outstanding at the time of
issuance or delivery of such securities to substantially the same extent as, or
to a greater extent than, the Securities are so subordinated as provided in
this Article. Nothing contained in this Article 5 or elsewhere in this
Indenture or in the Securities is intended to or shall impair, as among the Company,
its creditors other than holders of Senior Indebtedness and the Holders, the
right, which is absolute and unconditional, of the Holder of any Security to
convert such Security in accordance with Article 4.


 


40

















 


SECTION
5.9. ARTICLE APPLICABLE TO PAYING AGENTS.


 


If at any time any Paying
Agent other than the Trustee shall have been appointed by the Company and be
then acting hereunder, the term “Trustee” as used in this Article shall (unless
the context otherwise requires) be construed as extending to and including such
Paying Agent within its meaning as fully for all intents and purposes as if
such Paying Agent were named in this Article in addition to or in place of the
Trustee; provided, however, that the first paragraph of
Section 5.5 shall not apply to the Company or any Affiliate of the Company
if it or such Affiliate acts as Paying Agent.


 


SECTION
5.10. SENIOR INDEBTEDNESS ENTITLED TO RELY.


 


The holders of Senior
Indebtedness (including, without limitation, Designated Senior Indebtedness)
shall have the right to rely upon this Article 5, and no amendment or
modification of the provisions contained herein shall diminish the rights of
such holders unless such holders shall have agreed in writing thereto.


 


ARTICLE
6

COVENANTS


 


SECTION 6.1. PAYMENT OF SECURITIES.


 


The Company shall
promptly make all payments in respect of the Securities on the dates and in the
manner provided in the Securities and this Indenture.  An installment of principal, interest or Additional Interest, if
any, shall be considered paid on the date it is due if the Paying Agent (other
than the Company) holds by 11:00 a.m., New York City time, on that date money,
deposited by the Company or an Affiliate thereof, sufficient to pay the installment.  Subject to Section 4.2 hereof and except in
the case of a redemption or Change in Control, accrued and unpaid interest or
Additional Interest, if any, on any Security that is payable, and is punctually
paid or duly provided for, on any interest payment date shall be paid to the
Person in whose name that Security is registered at the close of business on
the record date for such interest or Additional Interest, if any, at the office
or agency of the Company maintained for such purpose.  The Company shall, (in immediately available funds) to the
fullest extent permitted by law, pay interest on overdue principal (including
premium, if any) and overdue installments of interest from the original due
date to the date paid, at the rate applicable to the Security plus 2% per
annum, which interest shall be payable on demand.  Additional Interest, if any, shall accrue at the rates provided
for in the Registration Rights Agreement and shall be paid at the same time and
in the same manner as regular interest.


 


Payment of the principal
of (and premium, if any, interest and Additional Interest, if any, payable on
the Final Maturity Date) 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 immediately available funds 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.  Payment of
interest or Additional Interest, if any, shall 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 with an aggregate principal amount
in excess of $2,000,000 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 Company


 


41

















 


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.


 


SECTION 6.2. SEC REPORTS.


 


The Company shall file
all reports and other information and documents which it is required to file
with the SEC pursuant to Section 13 or 15(d) of the Exchange Act, and
within 15 days after it files them with the SEC, the Company shall file copies
of all such reports, information and other documents with the Trustee.


 


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


 


SECTION 6.3. COMPLIANCE CERTIFICATES.


 


The Company shall deliver
to the Trustee, within 90 days after the end of each fiscal year of the
Company (beginning with the fiscal year ending October 31, 2004), an
Officers’ 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 Officers’ Certificate shall describe the
default or Event of Default and the efforts to remedy the same.  For the purposes of this Section 6.3,
compliance shall be determined without regard to any grace period or
requirement of notice provided pursuant to the terms of this Indenture.


 


SECTION
6.4. 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
6.5. MAINTENANCE OF CORPORATE EXISTENCE.


 


Subject to
Article 7, 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
6.6. RULE 144A INFORMATION REQUIREMENT.


 


Within the period prior
to the expiration of the holding period applicable to sales of the Securities
under Rule 144(k) under the Securities Act (or any successor provision),
the Company covenants and agrees that it shall, during any period in which it
is not subject to Section 13 or 15(d) under the Exchange Act, 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 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 such further action as any Holder or
beneficial holder of such Securities or


 


42

















 


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. 
Upon the request of any Holder or any beneficial holder of the
Securities or such Common Stock, the Company will deliver to such Holder a
written statement as to whether it has complied with such requirements.


 


SECTION 6.7. STAY, EXTENSION AND USURY LAWS.


 


The Company covenants (to
the extent that it may lawfully do so) that it shall not at any time insist
upon, plead, or in any manner whatsoever claim or take the benefit or advantage
of, any stay, extension or usury law or other law which would prohibit or
forgive the Company from paying all or any portion of the principal of,
premium, if any, interest or Additional Interest, 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
6.8. PAYMENT OF ADDITIONAL INTEREST.


 


If Additional Interest is
payable by the Company pursuant to the Registration Rights Agreement, the
Company shall deliver to the Trustee a certificate to that effect stating
(i) the amount of such Additional Interest that is payable, (ii) the
reason why such Additional Interest is payable and (iii) the date on which
such Additional 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 is payable.


 


ARTICLE
7

CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE


 


SECTION 7.1. COMPANY MAY CONSOLIDATE, ETC. ONLY ON
CERTAIN TERMS.


 


The Company shall not
consolidate with or merge into any other Person (in a transaction in which the
Company is not the surviving Person) or sell, assign, convey, transfer, lease
or otherwise dispose of all or substantially all of its properties and assets
to any Person, unless:


 


(1)   in case the Company shall consolidate with or
merge into another Person (in a transaction in which the Company is not the
surviving Person) or sell, assign, convey, transfer, lease or otherwise dispose
of all or substantially all of its properties and assets to any Person, 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, the
properties and assets of the Company substantially as an entirety shall be a
corporation organized and validly existing under the laws of the United States
of America, any State thereof or the District of Columbia and shall expressly
assume, by an indenture supplemental hereto, executed and delivered to the
Trustee, in form satisfactory to the Trustee, the due and punctual payment of
the principal of, (premium, if any), interest and Additional Interest, if any,
on all the Securities and the performance or observance of every covenant of
this Indenture on the part of the Company to be performed or observed (and the
conversion rights shall be provided for in accordance with Article 4, by


 


43

















 


supplemental indenture satisfactory in form to the
Trustee, executed and delivered to the Trustee, by the Person (if other than
the Company) formed by such consolidation or into which the Company shall have
been merged or by the Person which shall have acquired the Company’s assets);


 


(2)   immediately after giving effect to such
transaction, no Event of Default, and no event which, after notice or lapse of
time or both, would become an Event of Default, shall have happened and be
continuing; and


 


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


 


SECTION 7.2. SUCCESSOR SUBSTITUTED.


 


Upon any consolidation of
the Company with, or merger of the Company into, any other Person or any
conveyance, transfer or lease of all or substantially all of the properties and
assets of the Company in accordance with Section 7.1, the successor Person
formed by such consolidation or into which the Company is merged or to which
such conveyance, transfer or lease is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this
Indenture with the same effect as if such successor Person had been named as
the Company herein, and thereafter, except in the case of a lease, the
predecessor Person shall be relieved of all obligations and covenants under
this Indenture and the Securities.


 


ARTICLE
8

DEFAULT AND REMEDIES


 


SECTION 8.1. EVENTS OF DEFAULT.


 


An “Event of Default”
shall occur if:


 


(1)   the Company defaults in the payment of any
interest or Additional Interest, if any, payable on any Security when the same
becomes due and payable and the default continues for a period of 30 days,
whether or not such payment shall be prohibited by the provisions of
Article 5 hereof;


 


(2)   the Company defaults in the payment of any
principal of (including, without limitation, any premium, if any, on) any
Security when the same becomes due and payable (whether at maturity, upon a
Change in Control Purchase Date or otherwise), whether or not such payment
shall be prohibited by the provisions of Article 5 hereof;


 


(3)   the Company fails to comply with any of its
other covenants contained in the Securities or this Indenture and the default
continues for the period and after the notice specified below;


 


(4)   the Company defaults in the payment of the
purchase price of any Security when the same becomes due and payable, whether
or not such payment shall be prohibited by the provisions of Article 5
hereof; or


 


44

















 


(5)   the Company fails to provide a Change in
Control Purchase Notice when required by Section 3.8; or


 


(6)   any indebtedness under any bond, debenture,
note or other evidence of indebtedness for money borrowed by the Company or any
Significant Subsidiary or under any mortgage, indenture or instrument under
which there may be issued or by which there may be secured or evidenced any
indebtedness for money borrowed by the Company or any Significant Subsidiary
(an “Instrument”) with a principal amount then outstanding in excess of U.S.
$25,000,000, whether such indebtedness now exists or shall hereafter be
created, is not paid at final maturity of the Instrument (either at its stated
maturity or upon acceleration thereof), and such indebtedness is not
discharged, or such default in payment or acceleration is not cured or
rescinded, within a period of 30 days after there shall have been given,
by registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in aggregate principal
amount of the Outstanding Securities of a series a written notice specifying
such default and requiring the Company to cause such indebtedness to be
discharged or cause such default to be cured or waived or such acceleration to
be rescinded or annulled and stating that such notice is a “Notice of Default”
hereunder; or


 


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


 


(A)      commences a voluntary case
or proceeding;


 


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


 


(C)        consents to the appointment
of a Custodian of it or for all or substantially all of its property; or


 


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


 


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


 


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


 


(B)        appoints a Custodian of
the Company or any Significant Subsidiary or for all or substantially all of
the property of the Company or any Significant Subsidiary; or


 


(C)        orders the liquidation of
the Company or any Significant Subsidiary;


 


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


 


The term “Bankruptcy Law”
means Title 11 of the United States Code (or any successor thereto) or any
similar federal or state law for the relief of debtors.  The term “Custodian” means any receiver,
trustee, assignee, liquidator, sequestrator or similar official under any
Bankruptcy Law.


 


45

















 


A default under
clause (3) above is not an Event of Default until the Trustee notifies the
Company, or the Holders of at least 25% in aggregate principal amount of the
Securities of a series then outstanding notify the Company and the Trustee, in
writing of the default, and the Company does not cure the default within
60 days after receipt of such notice. The notice given pursuant to this
Section 8.1 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 8.1 is cured, it ceases.


 


The Trustee shall not be
charged with knowledge of any Event of Default unless written notice thereof
shall have been given to a Trust Officer at the Corporate Trust Office of the
Trustee by the Company, a Paying Agent, any Holder or any agent of any Holder.


 


SECTION 8.2. ACCELERATION.


 


If an Event of Default
(other than an Event of Default specified in clause (7) or (8) of
Section 8.1) occurs and is continuing, the Trustee may, by notice to the
Company, or the Holders of at least 25% in aggregate principal amount of the
Securities then outstanding of any series may, by notice to the Company and the
Trustee, declare all unpaid principal to the date of acceleration on the
Securities then outstanding of such series (if not then due and payable) to be
due and payable upon any such declaration, and the same shall become and be
immediately due and payable.  If an
Event of Default specified in clause (7) or (8) of Section 8.1 occurs
with respect to the Company, all unpaid principal of the Securities of each
series then outstanding shall ipso facto become and be immediately 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 then outstanding of any series by
notice to the Trustee may rescind an acceleration and its consequences with
respect to that series if (a) all existing Events of Default with respect
to that series, other than the nonpayment of the principal of the Securities
which has become due solely by such declaration of acceleration, have been
cured or waived; (b) to the extent the payment of such interest is lawful,
interest at a rate of 2% per annum over the amount of interest otherwise
payable on such Security on overdue installments of interest and Additional
Interest, if any, and overdue principal, which has become due otherwise than by
such declaration of acceleration, has been paid; (c) the rescission would
not conflict with any judgment or decree of a court of competent jurisdiction;
and (d) all payments due to the Trustee and any predecessor Trustee under
Section 9.7 have been made.  No
such rescission shall affect any subsequent default or impair any right
consequent thereto.


 


SECTION 8.3. OTHER REMEDIES.


 


If an Event of Default
occurs and is continuing with respect to any series, the Trustee may, but shall
not be obligated to, pursue any available remedy by proceeding at law or in
equity to collect the payment of the principal of or interest or Additional
Interest, if any, on the Securities of such series or to enforce the
performance of any provision of such Securities or this Indenture.


 


The Trustee may maintain
a proceeding even if it does not possess any of the Securities or does not
produce any of them in the proceeding. 
A delay or omission by the Trustee or any Securityholder in exercising
any right or remedy accruing upon an Event of Default shall not impair the
right or remedy or constitute a waiver of or acquiescence in the Event of
Default.  No remedy is exclusive of any
other remedy.  All available remedies
are cumulative to the extent permitted by law.


 


46

















 


SECTION 8.4. WAIVER OF DEFAULTS AND
EVENTS OF DEFAULT.


 


Subject to
Sections 8.7 and 11.2, the Holders of a majority in aggregate principal
amount of the Securities then outstanding of a series by notice to the Trustee
may waive an existing default or Event of Default and its consequence with
respect to such series, except a default or Event of Default in the payment of
the principal of, premium, if any, or interest or Additional Interest, if any,
on any Security when due, a failure by the Company to convert any Securities
into Common Stock or any default or Event of Default in respect of any
provision of this Indenture or the Securities which, under Section 11.2,
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.


 


SECTION 8.5. CONTROL BY MAJORITY.


 


The Holders of a majority
in principal amount of all Securities then outstanding of any series may direct
the time, method and place of conducting any proceeding for exercising any
remedy or power available to the Trustee or exercising any trust or power
conferred on it with respect to such series. 
However, the Trustee may refuse to follow any direction that conflicts
with law or this Indenture, that the Trustee determines may be unduly
prejudicial to the rights of another Holder or the Trustee, or that may involve
the Trustee in personal liability unless the Trustee is offered indemnity
satisfactory to it; provided, however, that the Trustee may take
any other action deemed proper by the Trustee which is not inconsistent with
such direction.


 


SECTION 8.6. LIMITATIONS ON SUITS.


 


A Holder may not pursue
any remedy with respect to this Indenture or the Securities (except actions for
payment of overdue principal, premium, if any, interest or Additional Interest,
if any, or for the right to convert the Securities pursuant to Article 4)
unless:


 


(1)   the Holder gives to the Trustee written
notice of a continuing Event of Default;


 


(2)   the Holders of at least 25% in aggregate
principal amount of the then outstanding Securities of the applicable series
make a written request to the Trustee to pursue the remedy;


 


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


 


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


 


(5)   no direction inconsistent with such written
request has been given to the Trustee during such 60-day period by the Holders
of a majority in aggregate principal amount of the Securities then outstanding
of the applicable series.


 


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


 


47

















 


SECTION 8.7. RIGHTS 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 of, interest and Additional Interest, if any, on the
Security, on or after the respective due dates expressed in the Security and
this Indenture, 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
dates or the right to convert, is absolute and unconditional and shall not be
impaired or affected without the consent of the Holder.


 


SECTION
8.8. COLLECTION SUIT BY TRUSTEE.


 


If an Event of Default in
the payment of principal, interest or Additional Interest, if any, specified in
clause (1) or (2) of Section 8.1 occurs and is continuing with
respect to any Securities, the Trustee may recover judgment in its own name and
as trustee of an express trust against the Company or another obligor on the
Securities for the whole amount of principal and accrued interest or Additional
Interest, if any, remaining unpaid, together with, to the extent that payment
of such interest is lawful, interest on overdue principal and overdue
installments of interest or Additional Interest, if any, in each case at a rate
equal to the interest rate then in effect on such Security plus 2% per annum
and 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.


 


SECTION 8.9. TRUSTEE MAY FILE PROOFS
OF CLAIM.


 


The Trustee may file such
proofs of claim and other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel) and the Holders allowed in any judicial proceedings
relative to the Company (or any other obligor on the Securities), its creditors
or its property and shall be entitled and empowered to collect and receive any
money or other property payable or deliverable on any such claims and to
distribute the same, and any Custodian in any such judicial proceeding is
hereby authorized by each Holder to make such payments to the Trustee and, in
the event that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due to 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 9.7, and to the extent that such payment of the reasonable
compensation, expenses, disbursements and advances in any such proceedings shall
be denied for any reason, payment of the same shall be secured by a lien on,
and shall be paid out of, any and all distributions, dividends, money,
securities and other property which the Holders may be entitled to receive in
such proceedings, whether in liquidation or under any plan of reorganization or
arrangement or otherwise.  Nothing
herein contained shall be deemed to authorize the Trustee to authorize or
consent to, or, on behalf of any Holder, to authorize, accept or adopt 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 8.10. PRIORITIES.


 


If the Trustee collects
any money pursuant to this Article 8, it shall pay out the money in the
following order:


 


48

















 


First, to the Trustee for amounts due
under Section 9.7;


 


Second, to the holders of Senior
Indebtedness to the extent required by Article 5;


 


Third, to Holders for amounts due and
unpaid on the Securities for principal, interest and Additional Interest, if
any, ratably, without preference or priority of any kind, according to the
amounts due and payable on the Securities for principal, interest and
Additional Interest, if any, respectively; and


 


Fourth, the balance, if any, to the
Company.


 


The Trustee may fix a
record date and payment date for any payment to Holders pursuant to this
Section 8.10.


 


SECTION 8.11. UNDERTAKING FOR COSTS.


 


In any suit for the
enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it as Trustee, a court in its
discretion may require the filing by any party litigant in the suit of an
undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys’ fees and expenses,
against any party litigant in the suit, having due regard to the merits and
good faith of the claims or defenses made by the party litigant.  This Section 8.11 does not apply to a
suit made by the Trustee, a suit by a Holder pursuant to Section 8.7, or a
suit by Holders of more than 10% in aggregate principal amount of the
Securities then outstanding of any series.


 


ARTICLE
9

TRUSTEE


 


SECTION 9.1. DUTIES OF TRUSTEE.


 


(a)   If 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 care and skill in its exercise
as a prudent person would exercise or use under the circumstances in the
conduct of his or her own affairs.


 


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


 


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


 


(2)   in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this
Indenture.  The Trustee, however, shall
examine any certificates and opinions which by any provision hereof are
specifically required to be delivered to the Trustee to determine whether or
not they conform to the requirements of this Indenture.


 


(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 (subject to the Trust Indenture Act) that:


 


49

















 


(1)   this paragraph does not limit the effect of
subsection (b) of this Section 9.1;


 


(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 received by it pursuant to Section 8.5.


 


(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 unless the Trustee shall have received adequate
indemnity in its opinion against potential costs and liabilities incurred by it
relating thereto.


 


(e)   Every provision of this Indenture that in any
way relates to the Trustee is subject to subsections (a), (b), (c) and (d)
of this Section 9.1.


 


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


 


SECTION 9.2. RIGHTS OF TRUSTEE.


 


Subject to
Section 9.1:


 


(a)   The Trustee may rely conclusively on any
document believed by it to be genuine and to have been signed or presented by
the proper person.  The Trustee need not
investigate any fact or matter stated in the document.


 


(b)   Before the Trustee acts or refrains from
acting, it may require an Officers’ Certificate or an Opinion of Counsel, which
shall conform to Section 12.4(b). 
The Trustee shall not be liable for any action it takes or omits to take
in good faith in reliance on such Officers’ Certificate or Opinion.


 


(c)   The Trustee may act through its agents and
shall not be responsible for the misconduct or negligence of any agent
appointed with due care.


 


(d)   The Trustee shall not be liable for any action
it takes or omits to take in good faith which it believes to be authorized or
within its rights or powers.


 


(e)   The Trustee may consult with counsel of its
selection, and the advice or opinion of such counsel as to matters of law shall
be full and complete authorization and protection in respect of any such action
taken, omitted or suffered by it hereunder in good faith and in accordance with
the advice or opinion of such counsel.


 


(f)    The Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Indenture at the
request 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.


 


50

















 


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


 


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


 


(i)    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 to each agent, custodian and
other Person employed to act hereunder.


 


SECTION
9.3. INDIVIDUAL RIGHTS OF TRUSTEE.


 


The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Company or an Affiliate of the Company with the
same rights it would have if it were not Trustee.  Any Agent may do the same with like rights.  However, the Trustee is subject to
Sections 9.10 and 9.11.


 


SECTION 9.4. TRUSTEE’S DISCLAIMER.


 


The Trustee makes no
representation as to the validity or adequacy of this Indenture or the
Securities, it shall not be accountable for the Company’s use of the proceeds
from the Securities, and it shall not be responsible for any statement in the
Securities other than its certificate of authentication.


 


SECTION 9.5. NOTICE OF DEFAULT OR
EVENTS OF DEFAULT.


 


If a default or an Event
of Default occurs and is continuing and if it is known to the Trustee, the
Trustee shall mail to each Securityholder of the affected series notice of the
default or Event of Default within 90 days after it occurs.  However, the Trustee may withhold the notice
if and so long as a committee of its Trust Officers in good faith determines
that withholding notice is in the interests of Securityholders of such series,
except in the case of a default or an Event of Default in payment of the
principal of, interest or Additional Interest, if any, on any Security of such
series.


 


SECTION 9.6. REPORTS BY TRUSTEE TO
HOLDERS.


 


If such report is
required by TIA Section 313, within 60 days after each May 15,
beginning with the May 15 following the date of this Indenture, the
Trustee shall mail to each Securityholder a brief report dated as of such
May 15 that complies with TIA Section 313(a).  The Trustee also shall comply with TIA
Section 313(b)(2) and (c).


 


51

















 


A copy of each report at
the time of its mailing to Securityholders shall be mailed to the Company and
filed with the SEC and each stock exchange, if any, on which the Securities are
listed.  The Company shall notify the
Trustee whenever the Securities become listed on any stock exchange or listed
or admitted to trading on any quotation system and any changes in the stock
exchanges or quotation systems on which the Securities are listed or admitted
to trading and of any delisting thereof.


 


SECTION
9.7. COMPENSATION AND INDEMNITY.


 


The Company shall pay to
the Trustee from time to time such compensation (as agreed to from time to time
by the Company and the Trustee in writing) for its services (which compensation
shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust).  The
Company shall reimburse the Trustee upon request for all reasonable
disbursements, expenses and advances incurred or made by it.  Such expenses may include the reasonable
compensation, disbursements and expenses of the Trustee’s agents and counsel.


 


The Company shall
indemnify the Trustee or any predecessor Trustee (which for purposes of this
Section 9.7 shall include its officers, directors, employees and agents)
for, and hold it harmless against, any and all loss, liability or expense
including taxes (other than taxes based upon, measured by or determined by the
income of the Trustee), (including reasonable legal fees and expenses) incurred
by it in connection with the acceptance or administration of its duties under
this Indenture or any action or failure to act as authorized or within the
discretion or rights or powers conferred upon the Trustee hereunder including
the reasonable costs and expenses of the Trustee and its counsel in defending
itself against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.  The Trustee shall notify the Company promptly of any claim
asserted against the Trustee for which it may seek indemnity.  The Company need not pay for any settlement
effected without its prior written consent, which shall not be unreasonably
withheld.


 


The Company need not
reimburse the Trustee for any expense or indemnify it against any loss or
liability incurred by it resulting from its gross negligence or bad faith.


 


To secure the Company’s
payment obligations in this Section 9.7, the Trustee shall have a senior
claim to which the Securities are hereby made subordinate on all money or
property held or collected by the Trustee, except such money or property held
in trust to pay the principal of, interest and Additional Interest, if any, on
the Securities.  The obligations of the
Company under this Section 9.7 shall survive the satisfaction and
discharge of this Indenture or the resignation or removal of the Trustee.


 


When the Trustee incurs
expenses or renders services after an Event of Default specified in
clause (7) or (8) of Section 8.1 occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law to the extent permitted by law. The
provisions of this Section shall survive the termination of this
Indenture.


 


SECTION 9.8. REPLACEMENT OF TRUSTEE.


 


The Trustee may resign by
so notifying the Company.  The Holders
of a majority in aggregate principal amount of the Securities then outstanding
may remove the Trustee by so notifying the Trustee and may, with the Company’s
written consent, appoint a successor Trustee. 
The Company may remove the Trustee if:


 


52

















 


(1)   the Trustee fails to comply with
Section 9.10;


 


(2)   the Trustee is adjudged a bankrupt or an
insolvent;


 


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


 


(4)   the Trustee becomes incapable of acting.


 


If the Trustee resigns or
is removed or if a vacancy exists in the office of Trustee for any reason, the
Company shall promptly appoint a successor Trustee.  The resignation or removal of a Trustee shall not be effective
until a successor Trustee shall have delivered the written acceptance of its
appointment as described below.


 


If a successor Trustee
does not take office within 45 days after the retiring Trustee resigns or
is removed, the retiring Trustee, the Company or the Holders of 10% in
principal amount of the Securities then outstanding may petition any court of
competent jurisdiction for the appointment of a successor Trustee at the
expense of the Company.


 


If the Trustee fails to
comply with Section 9.10, any Holder may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.


 


A successor Trustee shall
deliver a written acceptance of its appointment to the retiring Trustee and to
the Company.  Immediately after that,
the retiring Trustee shall transfer all property held by it as Trustee to the
successor Trustee and be released from its obligations (exclusive of any
liabilities that the retiring Trustee may have incurred while acting as
Trustee) hereunder, the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee shall have all the rights, powers
and duties of the Trustee under this Indenture.  A successor Trustee shall mail notice of its succession to each
Holder.


 


A retiring Trustee shall
not be liable for the acts or omissions of any successor Trustee after its
succession.


 


Notwithstanding
replacement of the Trustee pursuant to this Section 9.8, the Company’s
obligations under Section 9.7 shall continue for the benefit of the
retiring Trustee.


 


SECTION
9.9. SUCCESSOR TRUSTEE BY MERGER, ETC.


 


If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust assets (including the administration of this
Indenture) to, another corporation, the resulting, surviving or transferee
corporation, without any further act, shall be the successor Trustee, provided
such transferee corporation shall qualify and be eligible under
Section 9.10.  Such successor
Trustee shall promptly mail notice of its succession to the Company and each
Holder.


 


SECTION
9.10. ELIGIBILITY; DISQUALIFICATION.


 


The Trustee shall always
satisfy the requirements of paragraphs (1), (2) and (5) of TIA
Section 310(a).  The Trustee (or
its parent holding company) shall have a combined capital and surplus of at
least $50,000,000.  If at any time the
Trustee shall cease to satisfy any such requirements, it shall resign


 


53

















 


immediately in the manner
and with the effect specified in this Article 9.  The Trustee shall be subject to the provisions of TIA
Section 310(b).  Nothing herein
shall prevent the Trustee from filing with the SEC the application referred to
in the penultimate paragraph of TIA Section 310(b).


 


SECTION
9.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.


 


The Trustee shall comply
with TIA Section 311(a), excluding any creditor relationship listed in TIA
Section 311(b).  A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent
indicated therein.


 


ARTICLE 10

SATISFACTION AND DISCHARGE OF INDENTURE


 


SECTION
10.1. SATISFACTION AND DISCHARGE OF INDENTURE.


 


This Indenture shall
cease to be of further 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


 


(1)   either


 


(A)  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 2.7 and
(ii) Securities for whose payment money has theretofore been deposited in
trust and thereafter repaid to the Company as provided in Section 10.3)
have been delivered to the Trustee for cancellation; or


 


(B)   all such Securities not theretofore delivered
to the Trustee for cancellation have become due and payable and the Company has
irrevocably deposited or caused to be irrevocably deposited cash with the
Trustee or a Paying Agent (other than the Company or any of its Affiliates) as
trust funds in trust for the purpose of and in an amount sufficient to pay and
discharge the entire indebtedness on such Securities not theretofore delivered
to the Trustee for cancellation, for principal and interest (including
Additional Interest, if any) to the date of such deposit (in the case of
Securities which have become due and payable);


 


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


 


(3)   the Company has delivered to the Trustee an
Officers’ 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.


 


Notwithstanding the
satisfaction and discharge of this Indenture, the obligations of the Company to
the Trustee under Section 9.7 shall survive and, if money shall have been
deposited with the Trustee pursuant to subclause (B) of clause (1) of
this Section, the provisions of Sections 2.3, 2.4, 2.5, 2.6, 2.7, 2.12,
Article 4, Section 6.1, Section 6.2, this Article 10 and Section
12.5, shall survive until the Securities have been paid in full.


 


54

















 


SECTION
10.2. APPLICATION OF TRUST MONEY.


 


Subject to the provisions
of Section 10.3, the Trustee or a Paying Agent shall hold in trust, for
the benefit of the Holders, all money deposited with it pursuant to
Section 10.1 and shall apply the deposited money in accordance with this
Indenture and the Securities to the payment of the principal of, interest and
Additional Interest, if any, on the Securities.  Money so held in trust shall not be subject to the subordination
provisions of Article 5.


 


SECTION 10.3. REPAYMENT TO COMPANY.


 


The Trustee and each
Paying Agent shall promptly pay to the Company upon request any excess money
(i) deposited with them pursuant to Section 10.1 and (ii) held
by them at any time.


 


The Trustee and each
Paying Agent shall pay to the Company upon request any money held by them for
the payment of principal or interest or Additional Interest, if any, that
remains unclaimed for two years after a right to such money has matured; provided,
however, that the Trustee or such Paying Agent, before being required to
make any such payment, may at the expense of the Company cause to be mailed to
each Holder entitled to such money notice that such money remains unclaimed and
that after a date specified therein, which shall be at least 30 days from
the date of such mailing, any unclaimed balance of such money then remaining
will be repaid to the Company.  After
payment to the Company, Holders entitled to money must look to the Company for
payment as general creditors unless an applicable abandoned property law
designates another person.


 


SECTION 10.4. REINSTATEMENT.


 


If the Trustee or any
Paying Agent is unable to apply any money in accordance with Section 10.2
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 10.1 until such time as the Trustee or such Paying
Agent is permitted to apply all such money in accordance with
Section 10.2; provided, however, that if the Company has
made any payment of the principal of or interest or Additional 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 or such Paying
Agent.


 


ARTICLE
11

AMENDMENTS, SUPPLEMENTS AND WAIVERS


 


SECTION
11.1. WITHOUT CONSENT OF HOLDERS.


 


The Company and the
Trustee may amend or supplement this Indenture or the Securities with respect
to one or both series of Securities without notice to or consent of any
Securityholder:


 


(a)   to comply with Sections 4.11 and 7.1;


 


(b)   to cure any ambiguity, defect or
inconsistency;


 


55

















 


(c)   to make any other change that does not
adversely affect the rights of any Securityholder;


 


(d)   to comply with the provisions of the TIA;


 


(e)   to add to the covenants of the Company for
the equal and ratable benefit of the Securityholders or to surrender any right,
power or option conferred upon the Company; or


 


(f)    to appoint a successor Trustee.


 


SECTION 11.2. WITH CONSENT OF
HOLDERS.


 


The Company and the
Trustee may, with respect to any series of Securities, amend or supplement this
Indenture or the Securities with the written consent of the Holders of at least
a majority in aggregate principal amount of the Securities then outstanding of
each series affected thereby.  The
Holders of at least a majority in aggregate principal amount of the Securities
then outstanding of a series may waive compliance (with respect to such series)
in a particular instance by the Company with any provision of this Indenture or
the Securities of such series without notice to any Securityholder.  However, notwithstanding the foregoing but
subject to Section 11.4, without the written consent of each
Securityholder of the series affected, an amendment, supplement or waiver,
including a waiver pursuant to Section 8.4, may not:


 


(a)   change the stated maturity of the principal
of any Security;


 


(b)   reduce the principal amount of, or any
premium or interest on, any Security;


 


(c)   change the place or currency of payment of
principal of, or any premium, interest or Additional Interest, if any, on, any
Security;


 


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


 


(e)   modify the provisions with respect to the
purchase right of Holders pursuant to Article 3 upon a Change in Control
in a manner adverse to Holders;


 


(f)    modify the subordination provisions of
Article 5 in a manner materially adverse to the Holders of Securities;


 


(g)   adversely affect the right of Holders to
convert Securities other than as provided in or under Article 4 of this
Indenture;


 


(h)   reduce the percentage of the aggregate
principal amount of the outstanding Securities whose Holders must consent to a
modification or amendment;


 


(i)    reduce the percentage of the aggregate
principal amount of the outstanding Securities necessary for the waiver of
compliance with the provisions of this Indenture or the waiver of defaults
under this Indenture; and


 


56

















 


(j)    modify any of the provisions of this Section
or Section 8.4, except to increase any such percentage or to provide that
provisions of this Indenture cannot be modified or waived without the consent
of the Holder of each outstanding Security affected thereby.


 


It shall not be necessary
for the consent of the Holders under this Section 11.2 to approve the
particular form of any proposed amendment, supplement or waiver, but it shall
be sufficient if such consent approves the substance thereof.


 


After an amendment,
supplement or waiver under Section 11.1 or this Section 11.2 becomes
effective, the Company shall mail to the Holders affected thereby a notice
briefly describing the amendment, supplement or waiver.  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 amendment, supplement or waiver. An amendment or
supplement under this Section 11.2 or under Section 11.1 may not make
any change that adversely affects the rights under Article 5 of any holder
of an issue of Senior Indebtedness unless the holders of that issue, pursuant
to its terms, consent to the change.


 


SECTION
11.3. COMPLIANCE WITH TRUST INDENTURE ACT.


 


Every amendment to or
supplement of this Indenture or the Securities shall comply with the TIA as in
effect at the date of such amendment or supplement.


 


SECTION 11.4. REVOCATION AND EFFECT
OF CONSENTS.


 


Until an amendment,
supplement or waiver becomes effective, a consent to it by a Holder is a
continuing consent by the Holder and every subsequent Holder of a Security or
portion of a Security that evidences the same debt as the consenting Holder’s
Security, even if notation of the consent is not made on any Security.  However, any such Holder or subsequent
Holder may revoke the consent as to its Security or portion of a Security if
the Trustee receives the notice of revocation before the date the amendment,
supplement or waiver becomes effective.


 


After an amendment,
supplement or waiver becomes effective with respect to a series, it shall bind
every Securityholder of such series, unless it makes a change described in any
of clauses (a) through (k) of Section 11.2.  In that case the amendment, supplement or waiver shall bind each
Holder of a Security who has consented to it and every subsequent Holder of a
Security or portion of a Security that evidences the same debt as the
consenting Holder’s Security.


 


SECTION 11.5. NOTATION ON OR EXCHANGE
OF SECURITIES.


 


If an amendment,
supplement or waiver changes the terms of a Security, the Trustee may require
the Holder of the Security to deliver it to the Trustee.  The Trustee may place an appropriate
notation on the Security about the changed terms and return it to the
Holder.  Alternatively, if the Company
or the Trustee so determines, the Company in exchange for the Security shall
issue and the Trustee shall authenticate a new Security that reflects the
changed terms.


 


SECTION
11.6. TRUSTEE TO SIGN AMENDMENTS, ETC.


 


The Trustee shall sign
any amendment or supplemental indenture authorized pursuant to this
Article 11 if the amendment or supplemental indenture does not adversely
affect the rights, duties,


 


57

















 


liabilities or immunities
of the Trustee.  If it does, the Trustee
may, in its sole discretion, but need not sign it.  In signing or refusing to sign such amendment or supplemental
indenture, the Trustee shall be entitled to receive and, subject to
Section 9.1, shall be fully protected in relying upon, an Opinion of
Counsel stating that such amendment or supplemental indenture is authorized or
permitted by this Indenture.  The
Company may not sign an amendment or supplement indenture until the Board of
Directors approves it.


 


SECTION
11.7. EFFECT OF SUPPLEMENTAL INDENTURES.


 


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


 


ARTICLE
12

MISCELLANEOUS


 


SECTION
12.1. TRUST INDENTURE ACT CONTROLS.


 


If any provision of this
Indenture limits, qualifies or conflicts with the duties imposed by any of
Sections 310 to 317, inclusive, of the TIA through operation of
Section 318(c) thereof, such imposed duties shall control.


 


SECTION 12.2. NOTICES.


 


Any demand, authorization
notice, request, consent or communication shall be given in writing and
delivered in person or mailed by first-class mail, postage prepaid, 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:


 


ADC Telecommunications,
Inc. 

13625 Technology Drive

Eden Prairie, Minnesota 55440

Attention:  General Counsel

Facsimile No.: 652-917-1717


 


if to
the Trustee, to:

180 East Fifth Street


St.
Paul, MN  55101


Attn:
Corporate Trust Services (ADC Telecommunications, Inc.)


Facsimile
No.: 651-244-0711


 


Such notices or
communications shall be effective when received.


 


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


 


58

















 


Any notice or
communication mailed to a Securityholder shall be mailed by first-class mail or
delivered by an overnight delivery service to it at its address shown on the
register kept by the Primary Registrar.


 


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


 


SECTION
12.3. COMMUNICATIONS BY HOLDERS WITH OTHER HOLDERS.


 


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


 


SECTION
12.4. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.


 


(a)   Upon any request or application by the
Company to the Trustee to take any action under this Indenture, the Company
shall furnish to the Trustee at the request of the Trustee:


 


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


 


(2)   an Opinion of Counsel stating that, in the
opinion of such counsel, all such conditions precedent (including any
covenants, compliance with which constitutes a condition precedent) have been
complied with.


 


(b)   Each Officers’ Certificate and 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 making such
certificate or opinion has read such covenant or condition;


 


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


 


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


 


(4)   a statement as to whether or not, in the
opinion of such person, such condition or covenant has been complied with;


 


provided
however, that with respect to matters of fact an Opinion of Counsel may
rely on an Officers’ Certificate or certificates of public officials.


 


59

















 


SECTION 12.5. RECORD DATE FOR VOTE OR
CONSENT OF SECURITYHOLDERS.


 


The Company (or, in the
event deposits have been made pursuant to Section 10.1, the Trustee) may
set a record date for purposes of determining the identity of Holders entitled
to vote or consent to any action by vote or consent authorized or permitted
under this Indenture, which record date shall not be more than thirty (30) days
prior to the date of the commencement of solicitation of such action.  Notwithstanding the provisions of
Section 11.4, if a record date is fixed, those persons who were Holders of
Securities at the close of business on such record date (or their duly
designated proxies), and only those persons, shall be entitled to take such
action by vote or consent or to revoke any vote or consent previously given,
whether or not such persons continue to be Holders after such record date.


 


SECTION 12.6. RULES BY TRUSTEE, PAYING AGENT,
REGISTRAR AND CONVERSION AGENT.


 


The Trustee may make
reasonable rules (not inconsistent with the terms of this Indenture) for action
by or at a meeting of Holders.  Any
Registrar, Paying Agent or Conversion Agent may make reasonable rules for its
functions.


 


SECTION 12.7. LEGAL HOLIDAYS.


 


A “Legal Holiday” is a
Saturday, Sunday or a day on which state or federally chartered banking
institutions in New York, New York and the state in which the Corporate Trust
Office is located are not required to be open (and, in the case of the Floating
Rate Notes, commercial banks in London, England, are not open for business,
including dealings in U.S dollars).  If
a payment date is a Legal Holiday, payment shall be made on the next succeeding
day that is not a Legal Holiday, and no interest or Additional Interest, if
any, shall accrue for the intervening period on such payment.  If an interest record date is a Legal
Holiday, the record date shall not be affected.


 


SECTION 12.8. GOVERNING LAW;
SUBMISSION TO JURISDICTION.


 


(a) This Indenture and
the Securities shall be governed by, and construed in accordance with, the laws
of the State of New York, without regard to principles of conflicts of laws.


 


(b) The Company
irrevocably submits to the non-exclusive jurisdiction of any New York State or
United States Federal court sitting in The City of New York over any suit,
action or proceeding arising out of or relating to this Indenture.  The Company irrevocably waives, to the
fullest extent permitted by law, any objection which it may now or hereafter
have to the laying of venue of any such suit, action or proceeding brought in
such a court and any claim that any such suit, action or proceeding brought in
such a court has been brought in an inconvenient forum.


 


SECTION
12.9. 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.


 


60

















 


SECTION
12.10. NO RECOURSE AGAINST OTHERS.


 


All liability described
in paragraph 15 of the Securities of any director, officer, employee or
stockholder, as such, of the Company is waived and released.


 


SECTION 12.11. SUCCESSORS.


 


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


 


SECTION 12.12. 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.


 


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


 


SECTION 12.14. TABLE OF CONTENTS,
HEADINGS, ETC.


 


The table of contents,
cross-reference sheet and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not to be
considered a part hereof, and shall in no way modify or restrict any of the
terms or provisions hereof.


 


SECTION
12.15. CALCULATIONS IN RESPECT OF THE SECURITIES.


 


The Company and its
agents shall make all calculations under the Indenture and the Securities in
good faith.  In the absence of manifest
error, such calculations shall be final and binding on all Holders.  The Company shall provide a copy of such
calculations to the Trustee as required hereunder.


 


[SIGNATURE PAGE FOLLOWS]


 


61

















 


IN WITNESS WHEREOF, the
parties hereto have hereunto set their hands as of the date and year first
above written.


 


 


	
   

  	
  ADC Telecommunications, Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert E.
  Switz

  
	
   

  	
  Name:

  	
  Robert E. Switz

  
	
   

  	
  Title:

  	
  Executive Vice
  President and Chief

  Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  U.S. Bank National Association, as
  Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Frank P.
  Leslie III

  
	
   

  	
  Name:

  	
  Frank P. Leslie
  III

  
	
   

  	
  Title:

  	
  Vice President

  
					



 


 


(Signature Page to Indenture)


 


62

















 


EXHIBIT A-1

[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 (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT
FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933 (THE
‘‘SECURITIES ACT’’), AND THIS SECURITY AND THE COMMON STOCK ISSUABLE UPON
CONVERSION THEREOF MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE SELLER OF THIS SECURITY
MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.](2)


 


THE
HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) THIS
SECURITY AND THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION THEREOF MAY BE
OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) IN THE UNITED
STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (II) OUTSIDE THE UNITED
STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE
SECURITIES ACT, (III) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE


 












(1) These paragraphs
should be included only if the Security is a Global Security.


 


(2) These paragraphs to
be included only if the Security is a Restricted Security.


 


A-1-1

















 


SECURITIES
ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (IV) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES (I)
THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS
REQUIRED TO, NOTIFY ANY PURCHASER OF THIS SECURITY FROM IT OF THE RESALE
RESTRICTIONS REFERRED TO IN (A) ABOVE. IN ANY CASE, THE HOLDER HEREOF WILL NOT,
DIRECTLY OR INDIRECTLY, ENGAGE IN ANY HEDGING TRANSACTIONS WITH REGARD TO THIS
SECURITY EXCEPT AS PERMITTED UNDER THE SECURITIES ACT.](2)


 


[THE HOLDER OF THIS
SECURITY IS ENTITLED TO THE BENEFITS OF A REGISTRATION RIGHTS AGREEMENT (AS
SUCH TERM IS DEFINED IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF) AND,
BY ITS ACCEPTANCE HEREOF, AGREES TO BE BOUND BY AND TO COMPLY WITH THE
PROVISIONS OF SUCH REGISTRATION RIGHTS AGREEMENT.](2)


 


A-1-2

















 


ADC
TELECOMMUNICATIONS, INC.


 




	
  CUSIP:  000886AC5

  	
   

  	
  R-1

  






 


1% CONVERTIBLE
SUBORDINATED NOTES DUE JUNE 15, 2008


 


ADC Telecommunications,
Inc., a Delaware corporation (the “Company”, which term shall include any
successor corporation under the Indenture referred to on the reverse hereof),
promises to pay
to             
                                   ,
or registered assigns, the principal sum of                                                   Dollars
($              )
on June 15, 2008 [or such greater or lesser amount as is indicated on the
Schedule of Exchanges of Notes on the other side of this Note](3) and to pay
interest thereon as provided on the other side of this Note.


 


Interest Payment
Dates:  June 15 and December 15,
beginning December 15, 2003.


 


Record Dates:       June 1 and December 1


 


This Note is convertible
as specified on the other side of this Note. 
Additional provisions of this Note are set forth on the other side of
this Note.


 


SIGNATURE PAGE FOLLOWS


 












(3) This phrase should be
included only if the Security is a global Security.


 


A-1-3

















 


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


 


	
   

  	
   

  	
   

  	
  ADC Telecommunications, Inc.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  	
   

  
	
  Attest:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
   

  



 


A-1-4

















 


Trustee’s Certificate of
Authentication:  This is one of the

Securities referred to in the within-mentioned Indenture.


 


	
  U.S. Bank National Association,

  	
   

  	
   

  
	
  as Trustee

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Authorized Signatory

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  



 


A-1-5

















 


[FORM
OF REVERSE SIDE OF SECURITY]



ADC TELECOMMUNICATIONS, INC. 

1% CONVERTIBLE SUBORDINATED NOTES DUE JUNE 15, 2008


 


1.     INTEREST


 


The Company shall pay
interest on this Note semiannually in arrears on June 15 and December 15, each
an “interest payment date”, of each year, commencing on December 15, 2003, at
the rate per annum specified in the title of this Note.  Interest shall accrue from and including
June 4, 2003 or the most recent interest payment date to which interest had
been paid or duly provided for to but excluding the date on which such interest
is paid.  Interest on this Note will be
computed on the basis of a 360-day year of twelve 30-day months.


 


The Company shall, (in
immediately available funds) to the fullest extent permitted by law, pay
interest on overdue principal (including premium, if any) and overdue
installments of interest from the original due date to the date paid, at the
rate applicable to this Note plus 2% per annum, which interest shall be payable
on demand.


 


All
references in the Indenture and this Note to interest shall be deemed to
include a reference to additional interest payable pursuant to the Registration
Rights Agreement dated as of June 4, 2003 with respect to this Note.  If additional interest is payable on this
Note as contemplated under the Registration Rights Agreement, it shall be
payable on each interest payment date and at maturity to the record holder
entitled to interest on such date.


 


The
interest so payable and punctually paid or duly provided for on any interest
payment date will be paid to the Person in whose name this Note (or one or more
Predecessor Securities) is registered at the close of business on the June 1 or
December 1 preceding such interest payment date (the “Record Date”) except as
provided in the Indenture.  Payment of
the principal of (and premium, if any) and interest on this Note will be made
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 and as
otherwise provided in the Indenture.


 


2.     METHOD OF
PAYMENT


 


The Holder must surrender this Note to a Paying Agent
to collect payment of principal at maturity. 
The Company will make any payments of interest at maturity to the person
to whom the principal is paid.  On
presentation and surrender of the certificated Note, 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.  The Company will make any payments of
interest on any interest payment date other than the date of maturity by check
mailed to the address of the record date registered holder as it appears in the
security register; provided, however, that a Holder with an
aggregate principal amount in excess of $2,000,000 will be paid by wire
transfer in immediately available funds at the election of such Holder if such
Holder has provided wire transfer instructions in writing to the Trustee not
less than 10 Business Days prior to the interest payment date.  Any wire transfer instructions received by the trustee will remain in
effect until revoked by the registered holder. 
Notwithstanding the foregoing, so long as


 


A-1-6

















 


this Note is registered in the name of a Depositary or
its nominee, all payments hereon shall be made by wire transfer of immediately
available funds to the account of the Depositary or its nominee.


 


3.     PAYING
AGENT, REGISTRAR AND CONVERSION AGENT


 


Initially, U.S. Bank
National Association (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 Holder.  The Company or any of
its Subsidiaries may, subject to certain limitations set forth in the
Indenture, act as Paying Agent or Registrar.


 


4.     INDENTURE,
LIMITATIONS


 


This Note is one of a
duly authorized issue of Securities of the Company designated as its 1%
Convertible Subordinated Notes Due June 15, 2008 (the “Notes”), issued
under an Indenture dated as of June 4, 2003 (together with any supplemental
indentures thereto, the “Indenture”), between the Company and the Trustee.  The terms of this Note 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, as in effect on the
date of the Indenture.  This Note is
subject to all such terms, and the Holder of this Note is referred to the Indenture
and said Act for a statement of them. Capitalized terms used and not defined
herein have the meanings assigned to such terms in the Indenture.


 


The Notes are
subordinated unsecured obligations of the Company limited to $175,000,000
aggregate principal amount (or $200,000,000 if the initial purchasers exercise
their option to purchase additional Notes). 
The Indenture does not limit other debt of the Company, secured or
unsecured, including Senior Indebtedness.


 


5.     PURCHASE
OF NOTES AT OPTION OF HOLDER UPON A CHANGE IN CONTROL


 


At the option of the
Holder and subject to the terms and conditions of the Indenture, the Company
shall become obligated to purchase 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 in excess thereof) of the Notes held by such Holder on the date that is
30 Business Days after the occurrence of a Change in Control, at a
purchase price equal to 100% of the principal amount thereof together with
accrued interest and Additional Interest, if any, up to, but excluding, the
Change in Control Purchase Date.  The
Holder shall have the right to withdraw any Change in Control Purchase Notice
(in whole or in a portion thereof that is $1,000 or an integral multiple of
$1,000 in excess thereof) at any time prior to the close of business on the
Business Day next preceding the Change in Control Purchase Date by delivering a
written notice of withdrawal to the Paying Agent in accordance with the terms
of the Indenture.


 


The Company may pay the
purchase price in cash or certain securities, as set forth in the Indenture.


 


6.     CONVERSION


 


A Holder of a Note may
convert the principal amount of such Note (or any portion thereof equal to
$1,000 or any integral multiple of $1,000 in excess thereof) into shares of
Common Stock at any time prior to the close of business on the Final Maturity
Date; provided, however, that if the Note is subject to purchase
upon a Change in Control, the conversion right will terminate at the close of
business on the 


 


A-1-7

















 


Business Day immediately
preceding the Change in Control Purchase Date for such Note or such earlier
date as the Holder presents such Note for purchase (unless the Company shall default
in making the Change in Control Purchase Price, when due, in which case the
conversion right shall terminate at the close of business on the date such
default is cured and such Note is purchased).


 


The initial
Conversion Price is $4.013 per share, subject to adjustment under certain
circumstances as provided in the Indenture. 
The number of shares of Common Stock issuable upon conversion of a Note
is determined by dividing the principal amount of the Note or portion thereof
converted by the Conversion Price in effect on the Conversion Date.  No fractional shares will be issued upon
conversion; in lieu thereof, an amount will be paid in cash based upon the
Closing Price (as defined in the Indenture) of the Common Stock on the Trading
Day immediately prior to the Conversion Date.


 


To convert a Note, a
Holder must (a) complete and manually sign the conversion notice set forth
below and deliver such notice to a Conversion Agent, (b) surrender the
Note to a Conversion Agent, (c) furnish appropriate endorsements and
transfer documents if required by a Registrar or a Conversion Agent, and
(d) pay any transfer or similar tax, if required.  Notes so 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, if any, shall also be accompanied by payment in funds acceptable to the
Company of an amount equal to the interest payable on such interest payment
date on the principal amount of such Note then being converted, and such
interest shall be payable to such registered Holder notwithstanding the
conversion of such Note, subject to the provisions of this Indenture relating
to the payment of defaulted interest, if any, by the Company in each case to
the extent provided in the Indenture, including Section 4.2 thereof.  If the Company defaults in the payment of
interest payable on such interest payment date, if any, the Company shall
promptly repay such funds to such Holder. 
A Holder may convert a portion of a Note equal to $1,000 or any integral
multiple thereof.


 


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


 


7.     SUBORDINATION


 


The indebtedness
evidenced by the Notes is, to the extent and in the manner provided in the
Indenture, subordinate and junior in right of payment to the prior payment in
full of all Senior Indebtedness of the Company (including any interest accruing
subsequent to the commencement of any bankruptcy or similar proceeding, whether
or not a claim for post-petition interest is allowed as a claim in any such
proceeding).  Any Holder by accepting
this Note agrees to and shall be bound by such subordination provisions and
authorizes the Trustee to give them effect. In addition to all other rights of
Senior Indebtedness described in the Indenture, the Senior Indebtedness shall
continue to be Senior Indebtedness and entitled to the benefits of the
subordination provisions irrespective of any amendment, modification or waiver
of any terms of any instrument relating to the Senior Indebtedness or any
extension or renewal of the Senior Indebtedness.


 


8.     DENOMINATIONS,
TRANSFER, EXCHANGE, CANCELLATION


 


The Notes are in
registered form, without coupons, in denominations of $1,000 and integral
multiples of $1,000.  A Holder may
register the transfer of or exchange Notes in accordance with the
Indenture.  The Registrar may require a
Holder, among other things, to furnish appropriate endorsements


 


A-1-8

















 


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.


 


All Notes surrendered for
payment, registration of transfer or exchange or conversion will, if
surrendered to the Company or any of its other Agents with respect to the
Notes, be delivered to the Trustee.  The
Trustee will promptly cancel all Notes delivered to it.  No Notes will be authenticated in exchange
for any Notes cancelled as provided in the Indenture.


 


9.     PERSONS
DEEMED OWNERS


 


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


 


10.   UNCLAIMED
MONEY


 


If money for the payment
of principal or interest remains unclaimed for two years, the Trustee or Paying
Agent will pay the money back to the Company at its written request, subject to
applicable unclaimed property law. 
After that, Holders entitled to money must look to the Company for
payment as general creditors unless an applicable abandoned property law
designates another person.


 


11.   AMENDMENT,
SUPPLEMENT AND WAIVER


 


Subject to certain
exceptions, the Indenture or the Notes may be amended or supplemented with the
consent of the Holders of at least a majority in aggregate principal amount of
the Notes then outstanding, and an existing default or Event of Default and its
consequence or compliance with any provision of the Indenture or the Notes may
be waived in a particular instance with the consent of the Holders of a
majority in aggregate principal amount of the Notes then outstanding.  Without the consent of or notice to any
Holder, the Company and the Trustee may amend or supplement the Indenture or
the Notes to, among other things, cure any ambiguity, defect or inconsistency
or make any other change that does not adversely affect the rights of any
Holder.


 


12.   SUCCESSOR ENTITY


 


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


 


13.   DEFAULTS
AND REMEDIES


 


Under the Indenture, an
Event of Default includes: 
(i) default for 30 days in payment of interest  or Additional Interest, if any, on any
Notes; (ii) default in payment of any principal (including, without
limitation, any premium) on the Notes when due; (iii) failure by the
Company for 60 days after notice to it to comply with any of its other
covenants contained in the Indenture or the Notes; (iv) default in the payment
of certain indebtedness of the Company or a Significant Subsidiary;
(v) certain events of bankruptcy, insolvency or reorganization of the
Company or any Significant Subsidiary and (vi) certain other events
described in the Indenture.  If an Event
of Default (other than as a result of certain events of bankruptcy, insolvency
or reorganization of the Company) occurs and is continuing, the Trustee or the
Holders of at least 25% in aggregate principal amount of the Notes then
outstanding may declare all unpaid principal to the date of acceleration on the
Notes then outstanding to be due and payable immediately, all as and to the
extent provided in the Indenture.  If an
Event of Default occurs as a result


 


A-1-9

















 


of certain events of
bankruptcy, insolvency or reorganization of the Company, unpaid principal of
the Notes then outstanding shall become due and payable immediately without any
declaration or other act on the part of the Trustee or any Holder, all as and
to the extent provided in the Indenture. 
Holders may not enforce the Indenture or the Notes except as provided in
the Indenture.  The Trustee may require
indemnity satisfactory to it before it enforces the Indenture or the
Notes.  Subject to certain limitations,
Holders of a majority in aggregate principal amount of the Notes then
outstanding may direct the Trustee in its exercise of any trust or power.  The Trustee may withhold from Holders notice
of any continuing default (except a default in payment of principal or
interest) if it determines that withholding notice is in their interests.  The Company is required to file periodic
reports with the Trustee as to the absence of default.


 


14.   TRUSTEE
DEALINGS WITH THE COMPANY


 


U.S. Bank National
Association, the Trustee under the Indenture, 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.


 


15.   NO RECOURSE
AGAINST OTHERS


 


A director, officer,
employee or stockholder, as such, of the Company shall not have any liability
for any obligations of the Company under the Notes or the Indenture nor for any
claim based on, in respect of or by reason of such obligations or their
creation.  The Holder of this Note by
accepting this Note waives and releases all such liability.  The waiver and release are part of the
consideration for the issuance of this Note.


 


16.   AUTHENTICATION


 


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


 


17.   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 Note but not specifically defined herein are defined
in the Indenture and are used herein as so defined.


 


18.   INDENTURE
TO CONTROL; GOVERNING LAW


 


In the case of any
conflict between the provisions of this Note and the Indenture, the provisions
of the Indenture shall control.  This
Note shall be governed by, and construed in accordance with, the laws of the
State of New York, without regard to principles of conflicts of law.


 


A-1-10

















 


The Company will furnish
to any Holder, upon written request and without charge, a copy of the
Indenture.  Requests may be made
to:  ADC Telecommunications, Inc., 13625
Technology Drive, Eden Prairie, MN 55440, [phone], Attention:  Investor Relations.


 


A-1-11

















 


ASSIGNMENT
FORM


 


To assign this Note, fill
in the form below:


 


I or we assign and
transfer this Note 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
Note 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 Note)

  
	
   

  	
   

  	
   

  
	
  *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.


 


A-1-12

















 


CONVERSION
NOTICE


 


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


 


To convert only part of
this Note, 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 Note)

  
	
   

  	
   

  	
   

  
	
  *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.


 


A-1-13

















 


OPTION
TO ELECT REPURCHASE


UPON
A CHANGE IN CONTROL


 


To:          ADC Telecommunications, Inc.


 


The undersigned
registered owner of this Security hereby irrevocably acknowledges receipt of a
notice from ADC Telecommunications, Inc. (the “Company”) as to the occurrence
of a Change in Control with respect to the Company 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 Indenture referred to in this
Security at the Change in Control Purchase Price, together with accrued
interest, if any, to, but excluding, such date, to the registered Holder
hereof.


 


	
  Dated:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature(s)
  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 purchased

  (in an integral multiple of $1,000, if less than all):

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
						



 


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


 


A-1-14

















 


SCHEDULE
OF EXCHANGES OF NOTES(3)


 


The following exchanges,
repurchases or conversions of a part of this global Note have been made:


 


 


	
  Principal
  Amount

  of this Global Note

  Following Such

  Decrease Date

  of Exchange (or Increase)

  	
   

  	
  Authorized

  Signatory of

  Securities

  Custodian

  	
   

  	
  Amount of Decrease in

  Principal Amount

  of this Global Note

  	
   

  	
  Amount of

  Increase in

  Principal Amount

  of this Global Note

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 












(3) This schedule should
be included only if the Security is a global Security.


 


A-1-15

















 


CERTIFICATE
TO BE DELIVERED UPON EXCHANGE OR REGISTRATION

OF TRANSFER OF RESTRICTED SECURITIES(4)


 


Re:                               1%
Convertible Subordinated Notes Due June 15, 2008 (the “Notes”) of ADC
Telecommunications, Inc.


 


This certificate relates
to $        principal amount of Notes
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 Notes.


 


In connection with such
request and in respect of each such Note, the Transferor does hereby certify
that the Transferor is familiar with transfer restrictions relating to the
Notes as provided in Section 2.12 of the Indenture dated as of June 4,
2003 between ADC Telecommunications, Inc. and U.S. Bank National Association,
as trustee (the “Indenture”), and the transfer of such Note is in accordance
with any applicable securities laws of any state and 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 Note does not require registration under
the Securities Act because (check applicable box):


 


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


 


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


 


o                                    Such Note is being
transferred to the Company.


 


o                                    Such Note 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 Note 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 Note is being
transferred to a non-U.S. Person in an offshore transaction in compliance with
Rule 904 of Regulation S under the Securities Act (or any successor
thereto).


 












(4) This
certificate should only be included if this Security is a Restricted Security.


 


A-1-16

















 


The Transferor
acknowledges and agrees that, if the transferee will hold any such Notes in the
form of beneficial interests in a global Note which is a “restricted security”
within the meaning of Rule 144 under the Securities Act, then such transfer
can only be made pursuant to (i) Rule 144A under the Securities Act and
such transferee must be a “qualified institutional buyer” (as defined in
Rule 144A) or (ii) Regulation S under the Securities Act.


 


 


	
  Date:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (Insert Name of
  Transferor)

  
	
   

  	
   

  	
   

  	
   

  



 


A-1-17

















 


EXHIBIT A-2

[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.](4)


 


[THIS
SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT
FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933 (THE
‘‘SECURITIES ACT’’), AND THIS SECURITY AND THE COMMON STOCK ISSUABLE UPON
CONVERSION THEREOF MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE SELLER OF THIS SECURITY
MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES
ACT PROVIDED BY RULE 144A THEREUNDER.](5)


 


THE
HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) THIS
SECURITY AND THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION THEREOF MAY BE
OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) IN THE UNITED
STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS


 












(4) These paragraphs should be included only if the Security is a
Global Security.


 


(5) These paragraphs to be included only if the Security is a
Restricted Security.


 


A-2-1

















 


OF
RULE 144A, (II) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE
WITH RULE 904 UNDER THE SECURITIES ACT, (III) PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF
AVAILABLE) OR (IV) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, IN EACH OF CASES (I) THROUGH (IV) IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE
HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF
THIS SECURITY FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE. IN
ANY CASE, THE HOLDER HEREOF WILL NOT, DIRECTLY OR INDIRECTLY, ENGAGE IN ANY
HEDGING TRANSACTIONS WITH REGARD TO THIS SECURITY EXCEPT AS PERMITTED UNDER THE
SECURITIES ACT.](2)


 


[THE HOLDER OF THIS
SECURITY IS ENTITLED TO THE BENEFITS OF A REGISTRATION RIGHTS AGREEMENT (AS
SUCH TERM IS DEFINED IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF) AND,
BY ITS ACCEPTANCE HEREOF, AGREES TO BE BOUND BY AND TO COMPLY WITH THE
PROVISIONS OF SUCH REGISTRATION RIGHTS AGREEMENT.](2)


 


A-2-2

















 


ADC
TELECOMMUNICATIONS, INC.


 




	
  CUSIP:  000886AA9

  	
   

  	
  R-1

  






 


FLOATING RATE CONVERTIBLE
SUBORDINATED NOTES DUE JUNE 15, 2013


 


ADC Telecommunications,
Inc., a Delaware corporation (the “Company”, which term shall include any
successor corporation under the Indenture referred to on the reverse hereof),
promises to pay
to             
                 ,
or registered assigns, the principal sum of
                                                        Dollars
($            ) on
June 15, 2013 [or such greater or lesser amount as is indicated on the
Schedule of Exchanges of Notes on the other side of this Note] (3) and to pay
interest thereon as provided on the other side of this Note.


 


Interest Payment
Dates:  June 15 and December 15,
beginning December 15, 2003.


 


Record
Dates:  June 1 and December 1


 


This Note is convertible
as specified on the other side of this Note. 
Additional provisions of this Note are set forth on the other side of
this Note.


 


SIGNATURE PAGE FOLLOWS


 












(3) This phrase should be
included only if the Security is a global Security.


 


A-2-3

















 


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


 


	
   

  	
  ADC Telecommunications, Inc.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
  Attest:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  



 


A-2-4

















 


Trustee’s Certificate of
Authentication:  This is one of the

Securities referred to in the within-mentioned Indenture.


 


U.S. Bank National Association,


as Trustee


 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Authorized Signatory

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  



 


A-2-5

















 


[FORM OF REVERSE SIDE OF SECURITY]



ADC TELECOMMUNICATIONS, INC. 

FLOATING RATE CONVERTIBLE SUBORDINATED NOTES DUE JUNE 15, 2013


 


1.     INTEREST


 


The Company shall pay
interest on this Note semiannually in arrears at the rate specified below on
June 15 and December 15, each an interest payment date, commencing on December
15, 2003.  Interest shall accrue from
and including June 4, 2003 or the most recent interest date to which interest
has been paid or duly provided for. 
Interest on this Note will be computed on the basis of a 360-day year
using the actual number of days elapsed from and including an interest payment
date to but excluding the next succeeding interest payment date.


 


The Company shall, (in
immediately available funds) to the fullest extent permitted by law, pay
interest on overdue principal (including premium, if any) and overdue
installments of interest from the original due date to the date paid, at the
rate applicable to this Note plus 2% per annum, which interest shall be payable
on demand.


 


All references in the
Indenture and this Note to interest shall be deemed to include a reference to
additional interest if payable pursuant to the Registration Rights Agreement
dated as of June 4, 2003 with respect to the Notes.  If additional interest is payable on this Note as contemplated
under the Registration Rights Agreement, it shall be payable on each interest
payment date and at maturity to the record holder entitled to interest on such
date.


 


The
interest so payable and punctually paid or duly provided for on any interest
payment date will be paid to the Person in whose name this Note (or one or more
Predecessor Securities) is registered at the close of business on the June 1 or
December 1 preceding such interest payment date (the “Record Date”) except as
provided in the Indenture.  Payment of
the principal of (and premium, if any) and interest on this Note will be made
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 and as
otherwise provided in the Indenture.


 


The interest rate on this
Note for the period from June 4, 2003 to December 15, 2003 will be
1.5625%.  The Calculation Agent will
reset the interest rate on each interest payment date, each an “interest reset
date,” commencing December 15, 2003. 
The second London business day preceding an interest reset date will be
the “LIBOR determination date” for that interest reset date.  To reset the interest rate, the Calculation
Agent will determine 6-month LIBOR on the LIBOR determination date and then add
0.375% to it.  The interest rate in
effect on each day that is not an interest reset date will be the interest rate
determined as of the LIBOR determination date pertaining to the immediately
preceding interest reset date.  The
interest rate in effect on any day that is an interest reset date will be the
interest rate determined as of the interest determination date pertaining to
that interest reset date.


 


“6-month LIBOR” means:


 


a)              the rate for six-month deposits in United
States dollars commencing on the related interest payment date, that appears on
the Moneyline Telerate Page 3750 as of 11:00 a.m., London time, on the LIBOR
determination date; or


 


A-2-6

















 


b)             if no rate appears on the particular LIBOR
determination date on the Moneyline Telerate Page 3750, the rate calculated by
the calculation agent as the arithmetic mean (rounded, if necessary, to the
nearest one thousandth of a percentage point, with five one-ten thousandths of
a percentage point rounded upwards) of at least two offered quotations obtained
by the calculation agent after requesting the principal London offices of each
of four major reference banks in the London interbank market to provide the
calculation agent with its offered quotation for deposits in United States
dollars for the period of six months, commencing on the related interest
payment date, to prime banks in the London interbank market at approximately
11:00 a.m., London time, on that LIBOR determination date and in a principal
amount that is representative for a single transaction in United States dollars
in that market at that time; or


 


c)              if fewer than two offered quotations referred
to in clause (b) are provided as requested, the rate calculated by the
calculation agent as the arithmetic mean (rounded, if necessary, to the nearest
one thousandth of a percentage point, with five one-ten thousandths of a
percentage point rounded upwards) of the rates quoted at approximately 11:00
a.m., New York time, on the particular LIBOR determination date by three major
banks in The City of New York selected by the calculation agent for loans in
United States dollars to leading European banks for a period of six months and
in a principal amount that is representative for a single transaction in United
States dollars in that market at that time; or


 


d)             if the banks so selected by the calculation
agent are not quoting as mentioned in clause (c), 6-month LIBOR in effect on
the preceding LIBOR determination date (1.5625% per annum in the case of the
reset on December 15, 2003).


 


‘‘Moneyline Telerate Page
3750’’ means the display on Moneyline Telerate (or any successor service) on
such page (or any other page as may replace such page on such service) for the
purpose of displaying the London interbank rates of major banks for United
States dollars.


 


‘‘London banking day’’ means
a day on which commercial banks are open for business, including dealings in
United States dollars, in London.


 


The Calculation Agent
shall be U.S. Bank National Association, or such other Person as the Company
shall from time to time designate.


 


2.     METHOD OF
PAYMENT


 


The Holder must surrender this Note to a Paying Agent
to collect payment of principal at maturity. 
The Company will make any payments of interest at maturity to the person
to whom the principal is paid.  On
presentation and surrender of the certificated Note, 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.  The Company will make any payments of
interest on any interest payment date other than the date of maturity by check
mailed to the address of the record date registered holder as it appears in the
security register; provided, however, that a Holder with an
aggregate principal amount in excess of $2,000,000 will be paid by wire
transfer in immediately available funds at the election of such Holder if such
Holder has provided wire transfer instructions in writing to the Trustee not
less than 10 Business Days prior to the interest payment date.  Any wire transfer instructions received by the trustee will remain in
effect until revoked by the registered holder. 
Notwithstanding the foregoing, so long as


 


A-2-7

















 


this Note is registered in the name of a Depositary or
its nominee, all payments hereon shall be made by wire transfer of immediately
available funds to the account of the Depositary or its nominee.


 


3.     PAYING
AGENT, REGISTRAR AND CONVERSION AGENT


 


Initially, U.S. Bank
National Association (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 Holder.  The Company or
any of its Subsidiaries may, subject to certain limitations set forth in the
Indenture, act as Paying Agent or Registrar.


 


4.     INDENTURE,
LIMITATIONS


 


This Note is one of a
duly authorized issue of Securities of the Company designated as its Floating
Rate Convertible Subordinated Notes Due June 15, 2013 (the “Notes”),
issued under an Indenture dated as of June 4, 2003 (together with any
supplemental indentures thereto, the “Indenture”), between the Company and the
Trustee.  The terms of this Note 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, as in
effect on the date of the Indenture. 
This Note is subject to all such terms, and the Holder of this Note is
referred to the Indenture and said Act for a statement of them.  Capitalized terms used and not defined
herein have the meanings assigned to such terms in the Indenture.


 


The Notes are
subordinated unsecured obligations of the Company limited to $175,000,000
aggregate principal amount (or $200,000,000 if the Initial Purchasers exercise
their option to purchase additional Notes). 
The Indenture does not limit other debt of the Company, secured or
unsecured, including Senior Indebtedness.


 


5.     PURCHASE OF
NOTES AT OPTION OF HOLDER UPON A CHANGE IN CONTROL


 


At the option of the
Holder and subject to the terms and conditions of the Indenture, the Company
shall become obligated to purchase 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 in excess thereof) of the Notes held by such Holder on the date that is
30 Business Days after the occurrence of a Change in Control, at a
purchase price equal to 100% of the principal amount thereof together with
accrued interest and Additional Interest, if any, up to, but excluding, the
Change in Control Purchase Date.  The
Holder shall have the right to withdraw any Change in Control Purchase Notice
(in whole or in a portion thereof that is $1,000 or an integral multiple of
$1,000 in excess thereof) at any time prior to the close of business on the
Business Day next preceding the Change in Control Purchase Date by delivering a
written notice of withdrawal to the Paying Agent in accordance with the terms
of the Indenture.


 


The Company may pay the
purchase price in cash or certain securities, as set forth in the Indenture.


 


6.     CONVERSION


 


A Holder of a Note may
convert the principal amount of such Note (or any portion thereof equal to
$1,000 or any integral multiple of $1,000 in excess thereof) into shares of
Common Stock at any time prior to the close of business on the Final Maturity
Date; provided, however, that if the Note is subject to
redemption or purchase upon a Change in Control, the conversion right will
terminate at the close of


 


A-2-8

















 


business on the Business
Day immediately preceding the Redemption Date or Change in Control Purchase
Date for such Note or such earlier date as the Holder presents such Note for
purchase (unless the Company shall default in making the Redemption Price or
Change in Control Purchase Price, when due, in which case the conversion right
shall terminate at the close of business on the date such default is cured and such
Note is purchased).


 


The initial
Conversion Price is $4.013 per share, subject to adjustment under certain
circumstances as provided in the Indenture. 
The number of shares of Common Stock issuable upon conversion of a Note
is determined by dividing the principal amount of the Note or portion thereof
converted by the Conversion Price in effect on the Conversion Date.  No fractional shares will be issued upon
conversion; in lieu thereof, an amount will be paid in cash based upon the
Closing Price (as defined in the Indenture) of the Common Stock on the Trading
Day immediately prior to the Conversion Date.


 


To convert a Note, a
Holder must (a) complete and manually sign the conversion notice set forth
below and deliver such notice to a Conversion Agent, (b) surrender the
Note to a Conversion Agent, (c) furnish appropriate endorsements and
transfer documents if required by a Registrar or a Conversion Agent, and
(d) pay any transfer or similar tax, if required.  Notes so 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, if any, shall also be accompanied by payment in funds acceptable to the
Company of an amount equal to the interest payable on such interest payment
date on the principal amount of such Note then being converted, and such
interest shall be payable to such registered Holder notwithstanding the
conversion of such Note, subject to the provisions of this Indenture relating
to the payment of defaulted interest, if any, by the Company in each case to
the extent provided in the Indenture, including Section 4.2 thereof.  If the Company defaults in the payment of
interest payable on such interest payment date, if any, the Company shall
promptly repay such funds to such Holder. 
A Holder may convert a portion of a Note equal to $1,000 or any integral
multiple thereof.


 


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


 


7.     SUBORDINATION


 


The indebtedness
evidenced by the Notes is, to the extent and in the manner provided in the
Indenture, subordinate and junior in right of payment to the prior payment in
full of all Senior Indebtedness of the Company (including any interest accruing
subsequent to the commencement of any bankruptcy or similar proceeding, whether
or not a claim for post-petition interest is allowed as a claim in any such
proceeding).  Any Holder by accepting
this Note agrees to and shall be bound by such subordination provisions and
authorizes the Trustee to give them effect. In addition to all other rights of
Senior Indebtedness described in the Indenture, the Senior Indebtedness shall
continue to be Senior Indebtedness and entitled to the benefits of the
subordination provisions irrespective of any amendment, modification or waiver
of any terms of any instrument relating to the Senior Indebtedness or any
extension or renewal of the Senior Indebtedness.


 


8.     DENOMINATIONS,
TRANSFER, EXCHANGE, CANCELLATION


 


The Notes are in
registered form, without coupons, in denominations of $1,000 and integral
multiples of $1,000.  A Holder may
register the transfer of or exchange Notes in accordance with the


 


A-2-9

















 


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.


 


All Notes surrendered for
payment, registration of transfer or exchange or conversion will, if
surrendered to the Company or any of its other Agents with respect to the
Notes, be delivered to the Trustee.  The
Trustee will promptly cancel all Notes delivered to it.  No Notes will be authenticated in exchange
for any Notes cancelled as provided in the Indenture.


 


9.     PERSONS
DEEMED OWNERS


 


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


 


10.   UNCLAIMED
MONEY


 


If money for the payment
of principal or interest remains unclaimed for two years, the Trustee or Paying
Agent will pay the money back to the Company at its written request, subject to
applicable unclaimed property law. 
After that, Holders entitled to money must look to the Company for
payment as general creditors unless an applicable abandoned property law
designates another person.


 


11.   AMENDMENT,
SUPPLEMENT AND WAIVER


 


Subject to certain
exceptions, the Indenture or the Notes may be amended or supplemented with the
consent of the Holders of at least a majority in aggregate principal amount of
the Notes then outstanding, and an existing default or Event of Default and its
consequence or compliance with any provision of the Indenture or the Notes may
be waived in a particular instance with the consent of the Holders of a
majority in aggregate principal amount of the Notes then outstanding.  Without the consent of or notice to any
Holder, the Company and the Trustee may amend or supplement the Indenture or
the Notes to, among other things, cure any ambiguity, defect or inconsistency
or make any other change that does not adversely affect the rights of any
Holder.


 


12.   SUCCESSOR
ENTITY


 


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


 


13.   DEFAULTS
AND REMEDIES


 


Under the Indenture, an
Event of Default includes: 
(i) default for 30 days in payment of interest  or Additional Interest, if any, on any
Notes; (ii) default in payment of any principal (including, without
limitation, any premium) on the Notes when due; (iii) failure by the
Company for 60 days after notice to it to comply with any of its other
covenants contained in the Indenture or the Notes; (iv) default in the payment
of certain indebtedness of the Company or a Significant Subsidiary;
(v) certain events of bankruptcy, insolvency or reorganization of the
Company or any Significant Subsidiary and (vi) certain other events
described in the Indenture.  If an Event
of Default (other than as a result of certain events of bankruptcy, insolvency
or reorganization of the Company) occurs and is continuing, the Trustee or the
Holders of at least 25% in aggregate principal amount of the Notes then
outstanding may declare all unpaid principal to the date of acceleration on the
Notes then outstanding to be due and payable


 


A-2-10

















 


immediately, all as and
to the extent provided in the Indenture. 
If an Event of Default occurs as a result of certain events of
bankruptcy, insolvency or reorganization of the Company, unpaid principal of
the Notes then outstanding shall become due and payable immediately without any
declaration or other act on the part of the Trustee or any Holder, all as and
to the extent provided in the Indenture. 
Holders may not enforce the Indenture or the Notes except as provided in
the Indenture.  The Trustee may require
indemnity satisfactory to it before it enforces the Indenture or the
Notes.  Subject to certain limitations,
Holders of a majority in aggregate principal amount of the Notes then
outstanding may direct the Trustee in its exercise of any trust or power.  The Trustee may withhold from Holders notice
of any continuing default (except a default in payment of principal or
interest) if it determines that withholding notice is in their interests.  The Company is required to file periodic
reports with the Trustee as to the absence of default.


 


14.   REDEMPTION
AT THE OPTION OF THE COMPANY.


 


No sinking fund is
provided for the Notes.  Prior to June
23, 2008, the Notes will not be redeemable. 
Beginning on that date, the Company may redeem the Notes as a whole at
any time, or in part from time to time, at the following redemption prices,
expressed as a percentage of the principal amount of the Notes plus accrued and
unpaid interest to, but excluding, the Redemption Date:


 


 


	
  Redemption Period

  	
   

  	
  Redemption

  Price

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Beginning
  June 23, 2008 and ending on June 14, 2009

  	
   

  	
  100.98

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Beginning
  June 15, 2009 and ending on June 14, 2010

  	
   

  	
  100.82

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Beginning
  June 15, 2010 and ending on June 14, 2011

  	
   

  	
  100.66

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Beginning
  June 15, 2011 and thereafter

  	
   

  	
  100.5

  	
  %

  



 


Notice of redemption will
be mailed at least 30 days but not more than 60 days before the redemption date
to each holder of Notes to be redeemed at the Holder’s registered address. If
money sufficient to pay the redemption price plus accrued and unpaid interest
to, but excluding, the redemption date of all Notes (or portions thereof) to be
redeemed on the redemption date is deposited with the Paying Agent prior to or
on the redemption date, immediately after such redemption date interest ceases
to accrue on such Notes or portions thereof. Notes in denominations larger than
$1,000 of principal amount may be redeemed in part but only in integral
multiples of $1,000 of principal amount.


 


15.   TRUSTEE
DEALINGS WITH THE COMPANY


 


U.S. Bank National
Association, the Trustee under the Indenture, 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.


 


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16.   NO RECOURSE
AGAINST OTHERS


 


A director, officer,
employee or stockholder, as such, of the Company shall not have any liability
for any obligations of the Company under the Notes or the Indenture nor for any
claim based on, in respect of or by reason of such obligations or their
creation.  The Holder of this Note by
accepting this Note waives and releases all such liability.  The waiver and release are part of the
consideration for the issuance of this Note.


 


17.   AUTHENTICATION


 


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


 


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 Note but not specifically defined herein are defined
in the Indenture and are used herein as so defined.


 


19.   INDENTURE
TO CONTROL; GOVERNING LAW


 


In the case of any
conflict between the provisions of this Note and the Indenture, the provisions
of the Indenture shall control.  This
Note shall be governed by, and construed in accordance with, the laws of the
State of New York, without regard to principles of conflicts of law.


 


The Company will furnish
to any Holder, upon written request and without charge, a copy of the
Indenture.  Requests may be made
to:  ADC Telecommunications, Inc., 13625
Technology Drive, Eden Prairie, MN 55440, [phone], Attention:  Investor Relations.


 


A-2-12

















 


ASSIGNMENT
FORM


 


To assign this Note, fill
in the form below:


 


I or we assign and
transfer this Note 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
Note 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 Note)

  
	
   

  	
   

  	
   

  
	
  *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.


 


A-2-13

















 


CONVERSION
NOTICE


 


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


 


To convert only part of
this Note, 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 Note)

  
	
   

  	
   

  	
   

  
	
  *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.


 


A-2-14

















 


OPTION
TO ELECT REPURCHASE


UPON
A CHANGE IN CONTROL


 


To:          ADC Telecommunications, Inc.


 


The undersigned
registered owner of this Security hereby irrevocably acknowledges receipt of a
notice from ADC Telecommunications, Inc. (the “Company”) as to the occurrence
of a Change in Control with respect to the Company 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 Indenture referred to in this
Security at the Change in Control Purchase Price, together with accrued
interest, if any, to, but excluding, such date, to the registered Holder
hereof.


 


	
  Dated: 

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Signature(s) 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
  purchased

  	
   

  
	
  (in an integral
  multiple of $1,000, if less than all):

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
					



 


 


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


 


A-2-15

















 


SCHEDULE
OF EXCHANGES OF NOTES(3)


 


The following exchanges,
repurchases or conversions of a part of this global Note have been made:


 


 


	
  Principal Amount

  of this Global Note

  Following Such

  Decrease Date

  of Exchange (or Increase)

  	
   

  	
  Authorized

  Signatory of

  Notes

  Custodian

  	
   

  	
  Amount of Decrease in

  Principal Amount

  of this Global Note

  	
   

  	
  Amount of

  Increase in

  Principal Amount

  of this Global Note

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 












(3) This schedule should
be included only if the Security is a global Security.


 


A-2-16

















 


CERTIFICATE
TO BE DELIVERED UPON EXCHANGE OR REGISTRATION

OF TRANSFER OF RESTRICTED SECURITIES(4)


 


Re:                               Floating
Rate Convertible Subordinated Notes Due June 15, 2013 (the “Notes”) of ADC
Telecommunications, Inc.


 


This certificate relates
to $         principal amount of Notes
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 Notes.


 


In connection with such
request and in respect of each such Note, the Transferor does hereby certify
that the Transferor is familiar with transfer restrictions relating to the
Notes as provided in Section 2.12 of the Indenture dated as of June 4, 2003
between ADC Telecommunications, Inc. and U.S. Bank National Association, as
trustee (the “Indenture”), and the transfer of such Securities is in accordance
with any applicable securities laws of any state and 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 Note does not require registration under
the Securities Act because (check applicable box):


 


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


 


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


 


o                                    Such Note is being
transferred to the Company.


 


o                                    Such Note 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 Note 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 Note is being
transferred to a non-U.S. Person in an offshore transaction in compliance with
Rule 904 of Regulation S under the Securities Act (or any successor
thereto).


 












(4) This
certificate should only be included if this Security is a Transfer Restricted
Security.


 


A-2-17

















 


The Transferor
acknowledges and agrees that, if the transferee will hold any such Notes in the
form of beneficial interests in a global Note which is a “restricted security”
within the meaning of Rule 144 under the Securities Act, then such
transfer can only be made pursuant to (i) Rule 144A under the Securities
Act and such transferee must be a “qualified institutional buyer” (as defined
in Rule 144A) or (ii) Regulation S under the Securities Act.


 


 


	
  Date:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (Insert Name of
  Transferor)

  



 


A-2-18