**Exhibit 4-g**
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**ADC TELECOMMUNICATIONS, INC.**

 

**1%CONVERTIBLE SUBORDINATED NOTES DUE JUNE 15, 2008FLOATING RATE CONVERTIBLE SUBORDINATED NOTES DUE JUNE 15, 2013**

 

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** **

**INDENTUREDATED AS OF JUNE 4, 2003**

 

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**U.S.BANK NATIONAL ASSOCIATION,AS TRUSTEE**

 

 
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**TABLEOF 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 |

 

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| 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                                                               |

 

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| 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                      |

 

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| 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     |

 

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

 

In consideration of thepremises and the purchase of the Securities by the Holders thereof, bothparties agree as follows for the benefit of the other and for the equal andratable benefit of the registered Holders of the Company’s 1% ConvertibleSubordinated Notes Due June 15, 2008 and Floating Rate ConvertibleSubordinated Notes Due June 15, 2013.

 

# **ARTICLE 1DEFINITIONS AND INCORPORATION BY REFERENCE**

# ** **

**SECTION 1.1. DEFINITIONS.**

 

“Additional Interest” hasthe meaning specified in Section 5 of the Registration RightsAgreement.  All references herein tointerest accrued or payable as of any date shall include any AdditionalInterest accrued or payable as of such date as provided in the RegistrationRights Agreement.

 

“Affiliate” means, withrespect to any specified person, any other person directly or indirectlycontrolling or controlled by or under direct or indirect common control withsuch specified person.  For the purposesof this definition, “control” when used with respect to any person means thepower to direct the management and policies of such person, directly orindirectly, whether through the ownership of voting securities, by contract orotherwise; and the terms “controlling” and “controlled” have meaningscorrelative to the foregoing.

 

“Agent” means anyRegistrar, Paying Agent or Conversion Agent.

 

“Applicable Procedures”means, with respect to any transfer or exchange of beneficial ownershipinterests 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 theBoard of Directors authorized to act for it with respect to this Indenture.

 

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

 

“Capital Stock” or“capital stock” of any Person means any and all shares, interests, rights topurchase, warrants, options, participations or other equivalents of orinterests in (however designated) equity of such Person, but excluding any debtsecurities convertible into such equity.

 

“Cash” or “cash” meanssuch coin or currency of the United States as at any time of payment is legaltender for the payment of public and private debts.

 

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

 

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“Common Stock” means thecommon stock of the Company, $0.20 par value per share, as it exists on thedate of this Indenture and any shares of any class or classes of capital stockof the Company resulting from any reclassification or reclassifications thereofand which have no preference in respect of dividends or of amounts payable inthe event of any voluntary or involuntary liquidation, dissolution orwinding-up of the Company and which are not subject to redemption by theCompany; provided, however, that if at any time there shall bemore than one such resulting class, the shares of each such class then soissuable on conversion of Securities shall be substantially in the proportionwhich the total number of shares of such class resulting from all suchreclassifications bears to the total number of shares of all such classesresulting from all such reclassifications.

 

“Company” means the partynamed as such in the first paragraph of this Indenture until a successorreplaces it pursuant to the applicable provisions of this Indenture, andthereafter “Company” shall mean such successor Company.

 

“Corporate Trust Office”means the principal office of the Trustee at which at any particular time itscorporate trust business shall be administered which office at the date of theexecution of this Indenture is located at[                ],Attention:  Corporate Trust Services(ADC Telecommunications, Inc. — 1% Convertible Subordinated Notes DueJune 15, 2008 and Floating Rate Convertible Subordinated Notes Due June15, 2013) or at any other time at such other address as the Trustee maydesignate 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, afternotice or passage of time or both, would be an Event of Default.

 

“Designated SeniorIndebtedness” means any particular Senior Indebtedness of the Company in whichthe instrument creating or evidencing the same (or any related agreements ordocuments to which the Company is a party) expressly provides that such SeniorIndebtedness shall be “Designated Senior Indebtedness” for purposes of thisIndenture (providedthat such instrument, agreement or otherdocument may place limitations and conditions on the right of such SeniorIndebtedness to exercise the rights of Designated Senior Indebtedness).

 

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

 

“Final Maturity Date”,when used with respect to the Fixed Rate Securities, means June 15, 2008and 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 thisIndenture.

 

“Floating RateSecurities” means any of the Company’s Floating Rate Convertible SubordinatedNotes Due June 15, 2013, as amended or supplemented from time to time, that areissued under this Indenture.

 

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

 

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by such other entity asapproved by a significant segment of the accounting profession and (4) therules and regulations of the SEC governing the inclusion of financialstatements (including pro forma financial statements) in registrationstatements filed under the Securities Act and periodic reports required to befiled pursuant to Section 13 of the Exchange Act, including opinions andpronouncements in staff accounting bulletins and similar written statementsfrom the accounting staff of the SEC.

 

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

 

“Holder” or“Securityholder” means the person in whose name a Security is registered on thePrimary 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 ofoverdrafts, foreign exchange contracts, currency exchange agreements, interestrate protection agreements, and any loans or advances from banks, whether ornot evidenced by notes or similar instruments) or (ii) evidenced by credit orloan agreements, bonds, debentures, notes or similar instruments (whether ornot the recourse of the lender is to the whole of the assets of such Person orto only a portion thereof) (other than any accounts payable or other accruedcurrent liability or obligation incurred in the ordinary course of business inconnection with the obtaining of materials or services), (b) allreimbursement obligations and other liabilities (contingent or otherwise) ofsuch 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 withGAAP, to be accounted for as capitalized lease obligations on the balance sheetof such Person, (d) all obligations and liabilities (contingent orotherwise) of such Person under any lease or related document (including apurchase agreement, conditional sale or other title retention agreement) inconnection with the lease of real property or improvements thereon (or anypersonal property included as part of any such lease) which provides that suchPerson is contractually obligated to purchase or cause a third party topurchase the leased property or pay an agreed upon residual value of the leasedproperty to the lessor (whether or not such lease transaction is characterizedas an operating lease or a capitalized lease in accordance with GAAP),(e) all obligations (contingent or otherwise) of such Person with respectto any interest rate or other swap, cap, floor or collar agreement, hedgeagreement, forward contract, or other similar instrument or agreement orforeign currency hedge, exchange, purchase or similar instrument or agreement;(f) all direct or indirect guarantees, or similar agreements by suchPerson in respect of, and obligations or liabilities of such Person to purchaseor otherwise acquire or otherwise assure a creditor against loss in respect of,indebtedness, obligations or liabilities of another Person of the kindsdescribed 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 ofthe kinds described in clauses (a) through (f).

 

“Indenture” means thisIndenture as amended or supplemented from time to time pursuant to the terms ofthis Indenture.

 

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

 

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“Interest” on anySecurity shall refer to interest and Additional Interest thereon, unless thecontext otherwise requires.

 

“Officer” means theChairman of the Board, the Chief Executive Officer, the President, any VicePresident, the Chief Financial Officer, the Controller, the Secretary or anyAssistant 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” meansa certificate signed by the principal executive officer, principal financialofficer or principal accounting officer of the Company and by one otherOfficer.

 

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

 

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

 

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

 

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

 

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

 

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

 

“Representative” meansthe (a) indenture trustee or other trustee, agent or representative forany Senior Indebtedness or (b) with respect to any Senior Indebtednessthat does not have any such trustee, agent or other representative, (i) inthe case of such Senior Indebtedness issued pursuant to an agreement providingfor 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 therequired persons necessary to bind such holders or owners of such SeniorIndebtedness and (ii) in the case of all other such Senior Indebtedness,the holder or owner of such Senior Indebtedness.

 

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

 

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

 

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

 

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

 

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“SEC” means theSecurities and Exchange Commission.

 

“Securities” means any ofthe 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 areissued under this Indenture.

 

“Securities Act” meansthe Securities Act of 1933, as amended, and the rules and regulationspromulgated 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 interestaccruing subsequent to the commencement of any bankruptcy or similarproceeding, whether or not a claim for post-petition interest is allowed as aclaim in any such proceeding) and rent payable on or in connection with, andall fees, costs, expenses and other amounts accrued or due on or in connectionwith, Indebtedness of the Company whether secured or unsecured, absolute orcontingent, due or to become due, outstanding on the date of this Indenture orthereafter created, incurred, assumed, guaranteed or in effect guaranteed bythe Company (including all deferrals, renewals, extensions or refundings of, oramendments, modifications or supplements to, the foregoing), unless in the caseof any particular Indebtedness the instrument creating or evidencing the sameor the assumption or guarantee thereof expressly provides that suchIndebtedness shall not be senior in right of payment to the Securities orexpressly provides that such Indebtedness is “pari passu” or “junior” to theSecurities. Notwithstanding the foregoing, the term Senior Indebtedness shallnot include (i) any Indebtedness of the Company to any majority-ownedSubsidiary of the Company (other than Indebtedness of the Company arising byreason of guarantees by the Company of Indebtedness of any such Subsidiary to aPerson 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 wouldconstitute a “significant subsidiary” as such term is defined underRule 1-02 of Regulation S-X under the Securities Act and the Exchange Act.

 

“Subsidiary” means, inrespect of any Person, any corporation, association, partnership or otherbusiness entity of which more than 50% of the total voting power of shares ofCapital Stock or other interests (including partnership interests) entitled(without regard to the occurrence of any contingency) to vote in the electionof directors, managers, general partners or trustees thereof is at the timeowned 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 TrustIndenture Act of 1939, as amended, and the rules and regulations thereunder asin effect on the date of this Indenture, except as provided inSection 11.3, and except to the extent any amendment to the TrustIndenture Act expressly provides for application of the Trust Indenture Act asin effect on another date.

 

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

 

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other market) in itsentirety or only the shares of Common Stock (by reason of movements in priceexceeding limits permitted by the relevant market on which the shares aretraded 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 beyondthe Company’s control.

 

“Trustee” means the partynamed as such in the first paragraph of this Indenture until a successorreplaces it in accordance with the provisions of this Indenture, and thereaftermeans the successor.

 

“Trust Officer” means,with respect to the Trustee, any officer assigned to the Corporate TrustOffice, and also, with respect to a particular matter, any other officer towhom such matter is referred because of such officer’s knowledge of andfamiliarity with the particular subject.

 

“UnrestrictedCertificated Security” means a Certificated Security that is not a RestrictedSecurity.

 

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

 

“Vice President” whenused 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 afterthe title “vice president.”

 

“Voting Stock” of aPerson means all classes of Capital Stock or other interests (includingpartnership interests) of such Person then outstanding and normally entitled(without regard to the occurrence of any contingency) to vote in the electionof 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) |

 

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| **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) |

 

**SECTION1.3. TRUST INDENTURE ACT PROVISIONS.**

 

Whenever this Indenturerefers to a provision of the TIA, that provision is incorporated by referencein and made a part of this Indenture. The Indenture shall also include those provisions of the TIA required tobe included herein by the provisions of the Trust Indenture Reform Act of1990.  The following TIA terms used inthis Indenture have the following meanings:

 

“indenture securities”means the Securities;

 

“indenture securityholder” means a Securityholder;

 

“indenture to bequalified” means this Indenture;

 

“indenture trustee” or“institutional trustee” means the Trustee; and “obligor” on the indenturesecurities means the Company or any other obligor on the Securities.

 

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

 

**SECTION 1.4. RULES OF CONSTRUCTION.**

 

Unless the contextotherwise requires:

 

##### (A)                  a term has the meaningassigned to it;

#####  

##### (B)                   an accounting term nototherwise defined has the meaning assigned to it in accordance with GAAP;

#####  

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

 

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##### (D)                  provisions apply to successiveevents and transactions;

#####  

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

#####  

##### (F)                   the masculine gender includesthe feminine and the neuter;

#####  

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

#####  

##### (H)                  “herein,” “hereof” and otherwords of similar import refer to this Indenture as a whole and not to anyparticular Article, Section or other subdivision.

#####  

# **ARTICLE2THE SECURITIES**

# ** **

**SECTION 2.1. FORM AND DATING.**

 

The Securities and theTrustee’s certificate of authentication shall be substantially in therespective forms set forth in Exhibits A-1 and A-2, which are incorporatedin and made part of this Indenture. The Securities may have notations, legendsor 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 bythe Company pursuant to a Purchase Agreement, dated May 29, 2003 (the “**PurchaseAgreement**”), between the Company and the Initial Purchasers, intransactions exempt from, or not subject to, the registration requirements ofthe Securities Act.

 

### (a)   Restricted Global Securities.  All of the Securities are initially beingoffered and sold to qualified institutional buyers as defined in Rule 144A(collectively, “QIBs” or individually, each a “**QIB**”) in reliance onRule 144A under the Securities Act and shall be issued initially in theform of one or more Restricted Global Securities, which shall be deposited onbehalf of the purchasers of the Securities represented thereby with theTrustee, at its Corporate Trust Office, as custodian for the depositary, TheDepository Trust Company (“**DTC**”) (such depositary, or any successorthereto, being hereinafter referred to as the “**Depositary**”), and registeredin the name of its nominee, Cede & Co., duly executed by the Companyand authenticated by the Trustee as hereinafter provided.  The aggregate principal amount of theRestricted Global Securities may from time to time be increased or decreased byadjustments made on the records of the Securities Custodian as hereinafterprovided, subject in each case to compliance with the Applicable Procedures.

###  

### (b)   Global Securities In General.  Each Global Security shall represent such ofthe outstanding Securities as shall be specified therein and each shall providethat it shall represent the aggregate amount of outstanding Securities fromtime to time endorsed thereon and that the aggregate amount of outstandingSecurities represented thereby may from time to time be reduced or increased,as appropriate, to reflect exchanges, purchases or conversions of suchSecurities.   Any adjustment of theaggregate principal amount of a Global Security to reflect the amount of anyincrease or decrease in the amount of outstanding Securities representedthereby shall be made by the Trustee in accordance with instructions given bythe Holder thereof as required by Section 2.12 hereof and shall be made onthe records of the

 

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### Trustee and theDepositary.  Upon effectiveness of ashelf registration statement pursuant to the Registration Rights Agreement, theCompany shall issue, and the Trustee shall authenticate, a Global Security withrespect 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 aRestricted Global Security pursuant to such registration statement and deliveryof appropriate evidence thereof to the Trustee or any sale or transfer of abeneficial interest in connection with which the Legend may be removed inaccordance with this Indenture, the Trustee shall increase the principal amountof the unrestricted Global Security by the amount of such sale (or, aspermitted by this Indenture, issued an unrestricted Certificated Security) andlikewise reduce the principal amount of the Restricted Global Security.

###  

Members of, orparticipants in, the Depositary (“**Agent Members**”) shall have no rights underthis Indenture with respect to any Global Security held on their behalf by theDepositary or under the Global Security, and the Depositary (including, forthis purpose, its nominee) may be treated by the Company, the Trustee and anyagent of the Company or the Trustee as the absolute owner and Holder of suchGlobal Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall (A) prevent theCompany, the Trustee or any agent of the Company or the Trustee from givingeffect to any written certification, proxy or other authorization furnished bythe Depositary or (B) impair, as between the Depositary and its AgentMembers, the operation of customary practices governing the exercise of therights of a Holder of any Security.

 

### (c)   Book Entry Provisions.  The Company shall execute and the Trusteeshall, in accordance with this Section 2.1(c), authenticate and deliverinitially one or more Global Securities that (i) shall be registered inthe name of the Depositary or its nominee, (ii) shall be delivered by theTrustee to the Depositary or pursuant to the Depositary’s instructions and(iii) shall bear legends substantially in the form of the first paragraphof Exhibits A-1 and A-2 hereto.

###  

**SECTION2.2. EXECUTION AND AUTHENTICATION.**

 

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

 

If an Officer whosesignature is on a Security no longer holds that office at the time the Trusteeauthenticates the Security, the Security shall be valid nevertheless.

 

A Security shall not bevalid until an authorized signatory of the Trustee manually signs thecertificate of authentication on the Security. The signature shall be conclusive evidence that the Security has beenauthenticated under this Indenture.

 

The Trustee shallauthenticate and make available for delivery Securities for original issue inan 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 Purchasersexercise the option to purchase additional Securities granted to them in thePurchase Agreement) and an aggregate principal amount of up to $175,000,000Floating Rate Securities (subject to increase by up to $25,000,000  in the event the Initial Purchasers exercisethe option to purchase additional Securities granted to them in the PurchaseAgreement) upon receipt of a written order or orders of the Company signed byan Officer of the Company (a “**Company**

 

9

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**Order**”).  The Company Order shall specify the amountof Securities to be authenticated, shall provide that all such Securities willbe represented by a Restricted Global Security and the date on which eachoriginal issue of Securities is to be authenticated.  The aggregate principal amount of Securities outstanding at anytime 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 eachconstitute a separate series of Securities issued hereunder and each suchseries shall vote separately as its own class under the Indenture, except whereotherwise provided.

 

The Trustee shall act asthe initial authenticating agent. Thereafter, the Trustee may appoint an authenticating agent acceptableto the Company to authenticate Securities. An authenticating agent may authenticate Securities whenever the Trusteemay do so.  Each reference in thisIndenture to authentication by the Trustee includes authentication by suchagent.  An authenticating agent shallhave the same rights as an Agent to deal with the Company or an Affiliate ofthe Company.

 

The Securities shall beissuable 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 CONVERSIONAGENT.**

 

The Company shallmaintain one or more offices or agencies where Securities may be presented forregistration of transfer or for exchange (each, a “**Registrar**”), one or moreoffices or agencies where Securities may be presented for payment (each, a “**Paying Agent**”),one or more offices or agencies where Securities may be presented forconversion (each, a “**Conversion Agent**”) and one or more officesor agencies where notices and demands to or upon the Company in respect of theSecurities 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 theCompany in respect of the Securities and this Indenture may be served in theBorough of Manhattan, The City of New York. One of the Registrars (the “**PrimaryRegistrar**”) shall keep a register of the Securities and of theirtransfer and exchange.

 

The Company shall enterinto an appropriate agency agreement with any Agent not a party to thisIndenture.  The agreement shallimplement the provisions of this Indenture that relate to such Agent.  The Company shall notify the Trustee of thename and address of any Agent not a party to this Indenture.  If the Company fails to maintain aRegistrar, Paying Agent, Conversion Agent or agent for service of notices anddemands in any place required by this Indenture, or fails to give the foregoingnotice, 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 herebyinitially designates the Trustee as Paying Agent, Registrar, Custodian andConversion Agent, and the office or agency of the Trustee in the Borough ofManhattan, The City of New York (which shall initially be the office of theTrustee located at 100 Wall Street, Suite 1600, New York, New York 10005) as onesuch office or agency of the Company for each of the aforesaid purposes.

 

**SECTION 2.4. PAYING AGENT TO HOLDMONEY IN TRUST.**

 

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

 

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Section 5.2, aPaying Agent shall hold in trust for the benefit of Securityholders or theTrustee all money held by the Paying Agent for the payment of principal of,interest or Additional Interest, if any, on the Securities, and shall notifythe Trustee of any default by the Company (or any other obligor on theSecurities) in making any such payment. If the Company or an Affiliate of the Company acts as Paying Agent, itshall, before 11:00 a.m., New York City time, on each due date of the principalof, interest or Additional Interest, if any, on any Securities, segregate themoney and hold it as a separate trust fund. The Company at any time may require a Paying Agent to pay all money heldby it to the Trustee, and the Trustee may at any time during the continuance ofany default, upon written request to a Paying Agent, require such Paying Agentto pay forthwith to the Trustee all sums so held in trust by such PayingAgent.  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 shallpreserve in as current a form as is reasonably practicable the most recent listavailable 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 paymentdate, and at such other times as the Trustee may request in writing, a list insuch form and as of such date as the Trustee may reasonably require of thenames and addresses of Securityholders.

 

**SECTION 2.6. TRANSFER AND EXCHANGE.**

 

### (a)   Subject to compliance with any applicableadditional requirements contained in Section 2.12, when a Security ispresented to a Registrar with a request to register a transfer thereof or toexchange such Security for an equal principal amount of Securities of otherauthorized denominations, the Registrar shall register the transfer or make theexchange as requested; provided, however, that every Securitypresented or surrendered for registration of transfer or exchange shall be dulyendorsed or accompanied by an assignment form and, if applicable, a transfercertificate each in the form included in Exhibits A-1 and A-2, asapplicable, and in form satisfactory to the Registrar, duly executed by theHolder thereof or its attorney duly authorized in writing.  To permit registration of transfers andexchanges, upon surrender of any Security for registration of transfer orexchange at an office or agency maintained pursuant to Section 2.3, theCompany shall execute and the Trustee shall authenticate Securities of a likeaggregate principal amount at the Registrar’s request.  Any exchange or transfer shall be withoutcharge, except that the Company or the Registrar may require payment of a sumsufficient to cover any tax or other governmental charge that may be imposed inrelation thereto, and provided,that this sentence shall notapply to any exchange pursuant to Section  2.10, 2.12(a), 3.5, 4.2 (lastparagraph) or 11.5.

###  

Neither the Company, anyRegistrar nor the Trustee shall be required to exchange or register a transferof any Securities or portions thereof in respect of which a Change in ControlPurchase 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 thereofnot to be purchased).

 

All Securities issuedupon any transfer or exchange of Securities shall be valid obligations of theCompany, evidencing the same debt and entitled to the same benefits under thisIndenture, as the Securities surrendered upon such transfer or exchange.

 

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

###  

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### (c)   Each Holder of a Security agrees to indemnifythe Company and the Trustee against any liability that may result from thetransfer, exchange or assignment of such Holder’s Security in violation of anyprovision of this Indenture and/or applicable United States federal or statesecurities law.

###  

**SECTION 2.7. REPLACEMENT SECURITIES.**

 

If any mutilated Securityis surrendered to the Company, a Registrar or the Trustee, or the Company, aRegistrar and the Trustee receive evidence to their satisfaction of thedestruction, loss or theft of any Security, and there is delivered to theCompany, the applicable Registrar and the Trustee such security or indemnity aswill be required by them to save each of them harmless, then, in the absence ofnotice to the Company, such Registrar or the Trustee that such Security hasbeen acquired by a bona fide purchaser, the Company shall execute, and upon itswritten request the Trustee shall authenticate and deliver, in exchange for anysuch mutilated Security or in lieu of any such destroyed, lost or stolenSecurity, a new Security of like tenor and principal amount, bearing a numbernot contemporaneously outstanding.

 

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

 

Upon the issuance of anynew Securities under this Section 2.7, the Company may require the paymentof a sum sufficient to cover any tax or other governmental charge that may beimposed in relation thereto and any other reasonable expenses (including thereasonable fees and expenses of the Trustee or the Registrar) in connectiontherewith.

 

Every new Security issuedpursuant to this Section 2.7 in lieu of any mutilated, destroyed, lost orstolen Security shall constitute an original additional contractual obligationof the Company, whether or not the mutilated, destroyed, lost or stolenSecurity shall be at any time enforceable by anyone, and shall be entitled toall benefits of this Indenture equally and proportionately with any and all otherSecurities duly issued hereunder.

 

The provisions of thisSection 2.7 are (to the extent lawful) exclusive and shall preclude (tothe extent lawful) all other rights and remedies with respect to thereplacement or payment of mutilated, destroyed, lost or stolen Securities.

 

**SECTION 2.8. OUTSTANDING SECURITIES.**

 

Securities outstanding atany time are all Securities authenticated by the Trustee, except for thosecanceled by it, those converted pursuant to Article 4, those delivered toit for cancellation or surrendered for transfer or exchange and those describedin this Section 2.8 as not outstanding.

 

If a Security is replacedpursuant to Section 2.7, it ceases to be outstanding unless the Companyreceives proof satisfactory to it that the replaced Security is held by a bonafide purchaser.

 

If a Paying Agent (otherthan 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 topay the principal of (including premium, if any), interest and AdditionalInterest, if any, on Securities (or portions thereof) payable on that date,then on and after such Redemption Date, Change in Control

 

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Purchase Date or theFinal 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 AdditionalInterest, if any, on them shall cease to accrue.

 

Subject to therestrictions contained in Section 2.9, a Security does not cease to beoutstanding because the Company or an Affiliate of the Company holds theSecurity.

 

**SECTION 2.9. TREASURY SECURITIES.**

 

In determining whether the Holders of the required principal amount ofSecurities have concurred in any notice, direction, waiver or consent,Securities owned by the Company or any other obligor on the Securities or byany Affiliate of the Company or of such other obligor shall be disregarded,except that, for purposes of determining whether the Trustee shall be protectedin relying on any such notice, direction, waiver or consent, only Securitieswhich a Trust Officer of the Trustee actually knows are so owned shall be sodisregarded.  Securities so owned whichhave been pledged in good faith shall not be disregarded if the pledgeeestablishes to the satisfaction of the Trustee the pledgee’s right so to actwith respect to the Securities and that the pledgee is not the Company or anyother obligor on the Securities or any Affiliate of the Company or of suchother obligor.

 

**SECTION 2.10. TEMPORARY SECURITIES.**

 

Until definitiveSecurities 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.  TemporarySecurities shall be substantially in the form of definitive Securities but mayhave variations that the Company with the consent of the Trustee considersappropriate for temporary Securities. Without unreasonable delay, the Company shall prepare and the Trustee shallauthenticate and deliver definitive Securities in exchange for temporarySecurities.

 

**SECTION 2.11. CANCELLATION.**

 

The Company at any timemay deliver Securities to the Trustee for cancellation.  The Registrar, the Paying Agent and theConversion Agent shall forward to the Trustee or its agent any Securitiessurrendered to them for transfer, exchange, payment or conversion.  The Trustee and no one else shall cancel, inaccordance with its standard procedures, all Securities surrendered fortransfer, exchange, payment, conversion or cancellation and shall deliver thecanceled Securities to the Company.  AllSecurities which are purchased or otherwise acquired by the Company or any ofits Subsidiaries prior to the Final Maturity Date may be delivered to theTrustee for cancellation or, if permitted by law, be resold.  The Company may not hold or resell suchSecurities or issue any new Securities to replace any Securities cancelled orany 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 andbearing the legends set forth on the forms of Securities attached hereto asExhibits A-1 and A-2 (collectively, the “**Legend**”), or if a request ismade to remove the Legend on a Security, the Securities so issued shall bearthe Legend, or the Legend shall not be removed, as the case

###  

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may be, unless there is delivered to the Company andthe Registrar such satisfactory evidence, which shall include an opinion ofcounsel if requested by the Company or such Registrar, as may be reasonablyrequired by the Company and the Registrar, that neither the Legend nor therestrictions on transfer set forth therein are required to ensure thattransfers thereof comply with the provisions of Rule 144 under theSecurities Act or that such Securities are not “restricted” within the meaningof Rule 144 under the Securities Act; providedthat no suchevidence need be supplied in connection with the sale of such Security pursuantto a registration statement that is effective at the time of such sale.  Upon (i) provision of such satisfactoryevidence if requested, or (ii) notification by the Company to the Trusteeand Registrar of the sale of such Security pursuant to a registration statementthat is effective at the time of such sale, the Trustee, at the writtendirection of the Company, shall authenticate and deliver a Security that doesnot bear the Legend. If the Legend is removed from the face of a Security andthe Security is subsequently held by an Affiliate of the Company, the Legendshall be reinstated.

###  

### (b)   A Global Security may not be transferred, inwhole or in part, to any Person other than the Depositary or a nominee or anysuccessor thereof, and no such transfer to any such other Person may beregistered; providedthat the foregoing shall not prohibit anytransfer of a Security that is issued in exchange for a Global Security but isnot itself a Global Security. No transfer of a Security to any Person shall beeffective under this Indenture or the Securities unless and until such Securityhas been registered in the name of such Person. Notwithstanding any otherprovisions of this Indenture or the Securities, transfers of a Global Security,in whole or in part, shall be made only in accordance with thisSection 2.12.

###  

### (c)   Subject to the succeeding paragraph, everySecurity shall be subject to the restrictions on transfer provided in theLegend.  Whenever any RestrictedSecurity is presented or surrendered for registration of transfer or forexchange for a Security registered in a name other than that of the Holder,such Security must be accompanied by a certificate in substantially the formsset forth in Exhibits A-1 and A-2, as applicable, dated the date of suchsurrender and signed by the Holder of such Security, as to compliance with suchrestrictions on transfer. The Registrar shall not be required to accept forsuch registration of transfer or exchange any Security not so accompanied by aproperly completed certificate.

###  

### (d)   The restrictions imposed by the Legend uponthe transferability of any Security shall cease and terminate when suchSecurity has been sold pursuant to an effective registration statement underthe Securities Act or transferred in compliance with Rule 144 under theSecurities Act (or any successor provision thereto) or, if earlier, upon theexpiration of the holding period applicable to sales thereof underRule 144(k) under the Securities Act (or any successor provision). AnySecurity as to which such restrictions on transfer shall have expired inaccordance with their terms or shall have terminated may, upon a surrender ofsuch Security for exchange to the Registrar in accordance with the provisionsof this Section 2.12 (accompanied, in the event that such restrictions ontransfer have terminated by reason of a transfer in compliance withRule 144 or any successor provision, by, if requested by the Company orthe Registrar, an opinion of counsel reasonably acceptable to the Company andaddressed to the Company to the effect that the transfer of such Security hasbeen made in compliance with Rule 144 or such successor provision), beexchanged for a new Security, of like tenor and aggregate principal amount,which shall not bear the restrictive Legend. The Company shall inform theTrustee of the effective date of any registration statement registering theSecurities under the Securities Act. The Trustee shall not be liable for anyaction taken or omitted to be taken by it in good faith in accordance with theaforementioned opinion of counsel or registration statement.

###  

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### (e)   As used in the preceding two paragraphs ofthis 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 provisionsof this Indenture or the Securities, a Global Security shall not be exchangedin whole or in part for a Security registered in the name of any Person otherthan the Depositary or one or more nominees thereof, providedthata Global Security may be exchanged for Securities registered in the names ofany person designated by the Depositary in the event that (A) theDepositary has notified the Company that it is unwilling or unable to continueas Depositary for such Global Security or such Depositary has ceased to be a“clearing agency” registered under the Exchange Act, and a successor Depositaryis not appointed by the Company within 90 days after receipt of suchnotice or the Company becomes aware of such failure of registration,(B) the Company has provided the Depositary with written notice that ithas decided to discontinue use of the system of book-entry transfer through theDepositary or any successor Depositary or (C) an Event of Default hasoccurred and is continuing with respect to the Securities. Any Global Securityexchanged pursuant to clauses (A) or (B) above shall be so exchanged in wholeand 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 theDepositary. Any Security issued in exchange for a Global Security or anyportion thereof shall be a Global Security; provided that any such Security soissued that is registered in the name of a Person other than the Depositary ora nominee thereof shall not be a Global Security.

######  

##### (ii)           Securities issued in exchange for aGlobal Security or any portion thereof shall be issued in definitive, fullyregistered form, without interest coupons, shall have an aggregate principalamount equal to that of such Global Security or portion thereof to be soexchanged, shall be registered in such names and be in such authorizeddenominations as the Depositary shall designate and shall bear the applicablelegends provided for herein. Any Global Security to be exchanged in whole shallbe surrendered by the Depositary to the Trustee, as Registrar. With regard toany Global Security to be exchanged in part, either such Global Security shallbe so surrendered for exchange or, if the Trustee is acting as custodian forthe Depositary or its nominee with respect to such Global Security, theprincipal amount thereof shall be reduced, by an amount equal to the portionthereof to be so exchanged, by means of an appropriate adjustment made on therecords of the Trustee. Upon any such surrender or adjustment, the Trusteeshall authenticate and deliver the Security issuable on such exchange to orupon the order of the Depositary or an authorized representative thereof.

#####  

##### (iii)          Subject to the provisions ofclause (v) below, the registered Holder may grant proxies and otherwiseauthorize any Person, including Agent Members and persons that may holdinterests through Agent Members, to take any action which a Holder is entitledto take under this Indenture or the Securities.

 

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

#####  

##### (v)           Neither Agent Members nor any otherPersons on whose behalf Agent Members may act shall have any rights under thisIndenture with respect to any Global Security registered in the name of theDepositary or any nominee thereof, or under any such Global Security, and theDepositary 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 ownerand holder of such Global Security for all purposes whatsoever. Notwithstandingthe foregoing, nothing herein shall prevent the Company, the Trustee or anyagent of the Company or the Trustee from giving effect to any writtencertification, proxy or other authorization furnished by the Depositary or suchnominee, as the case may be, or impair, as between the Depositary, its AgentMembers and any other Person on whose behalf an Agent Member may act, theoperation of customary practices of such Persons governing the exercise of therights of a holder of any Security.

#####  

**SECTION 2.13. CUSIP NUMBERS.**

 

The Company in issuingthe 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 aconvenience to Holders; providedthat any such notice may statethat no representation is made as to the correctness of such numbers either asprinted on the Securities or as contained in any notice of a purchase and thatreliance may be placed only on the other identification numbers printed on theSecurities, and any such purchase shall not be affected by any defect in oromission of such numbers.  The Companywill promptly notify the Trustee of any change in the “CUSIP” numbers.

 

# **ARTICLE 3REDEMPTION AND PURCHASES**

# ** **

## **SECTION 3.1. RIGHTTO REDEEM; NOTICES TO TRUSTEE.**

 

The Fixed RateSecurities 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 theprovisions of paragraph 14 of the Floating Rate Securities.

 

The Companymay not redeem the Floating Rate Securities if it has failed to pay anyinterest or premium on the Floating Rate Securities and such failure to pay iscontinuing.

 

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

 

## **SECTION 3.2.SELECTION OF SECURITIES TO BE REDEEMED.**

 

If less thanall the outstanding Floating Rate Securities are to be redeemed, the Trusteeshall select the Floating Rate Securities to be redeemed in principal amountsof $1,000 or integral multiples of

 

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

 

Provisions ofthis Indenture that apply to Floating Rate Securities called for redemptionalso apply to portions of Floating Rate Securities called for redemption. TheTrustee shall notify the Company promptly of the Floating Rate Securities orportions of Floating Rate Securities to be redeemed.

 

If anyFloating Rate Security selected for partial redemption is converted in partbefore termination of the conversion right with respect to the portion of theFloating Rate Security so selected, the converted portion of such Floating RateSecurity shall be deemed (so far as may be) to be the portion selected forredemption. Floating Rate Securities which have been converted during aselection of Floating Rate Securities to be redeemed may be treated by theTrustee as outstanding for the purpose of such selection.

 

## **SECTION 3.3. NOTICEOF REDEMPTION.**

## ** **

At least 30days but not more than 60 days before a Redemption Date, the Company shallmail, 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 noticeshall identify the Floating Rate Securities to be redeemed and shall state:

 

#### •                  the aggregate principal amount of theSecurities to be redeemed;

####  

#### •                  the Redemption Date (which shall be aBusiness Day);

####  

#### •                  the Redemption Price including theamount of accrued and unpaid interest to be paid on such Floating RateSecurities;

####  

#### •                  the then current Conversion Price;

####  

#### •                  the name and address of the PayingAgent and Conversion Agent;

####  

#### •                  that Floating Rate Securities calledfor redemption may be converted at any time before the close of business on thedate that is the last Business Day prior to the Redemption Date unless theCompany fails to pay the Redemption Price;

####  

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

 

#### •                  that Floating Rate Securities calledfor redemption must be surrendered to the Paying Agent to collect theRedemption Price;

 

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#### •                  if fewer than all the outstandingFloating Rate Securities of such series are to be redeemed, the certificatenumbers, if any, and principal amounts of the particular Floating RateSecurities to be redeemed;

####  

#### •                  that, unless the Company defaults inmaking payment of such Redemption Price, interest on Floating Rate Securitiescalled for redemption will cease to accrue on and after the Redemption Date;and

####  

#### •                  the CUSIP number of the Floating RateSecurities.

####  

At the Company’s request, the Trustee shall give the notice ofredemption in the Company’s name and at the Company’s expense, provided thatthe Company makes such request at least three Business Days prior to the dateby which such notice of redemption must be given to Holders in accordance withthis Section 3.3.  Concurrently with themailing of any such notice of redemption, the Company shall issue a pressrelease announcing such redemption, the form and content of which shall bedetermined by the Company.

 

## **SECTION 3.4. EFFECTOF NOTICE OF REDEMPTION.**

## ** **

Once notice ofredemption is given, Floating Rate Securities called for redemption become dueand payable on the Redemption Date and at the Redemption Price stated in thenotice except for Floating Rate Securities which are converted in accordancewith the terms of this Indenture. Upon surrender to the Paying Agent, suchSecurities shall be paid at the Redemption Price stated in the notice, plusaccrued and unpaid interest to, but excluding, the Redemption Date.  If the Redemption Date falls after aninterest payment record date and on or before an interest payment date, thenthe interest payment will be payable to the Holders who present the FloatingRate Securities for redemption.

 

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

 

## **SECTION 3.5.DEPOSIT OF REDEMPTION PRICE.**

 

Prior to 12:00p.m. (New York City time) on the Redemption Date, the Company shall depositwith the Paying Agent (or the Trustee) money sufficient to pay the RedemptionPrice of and accrued and unpaid interest on all Floating Rate Securities to beredeemed on that date other than Floating Rate Securities or portions ofFloating Rate Securities called for redemption which on or prior thereto havebeen delivered by the Company to the Trustee for cancellation or have beenconverted.  The Paying Agent shall as promptlyas practicable return to the Company any money not required for that purposebecause of conversion of Floating Rate Securities pursuant to Article 4. Ifsuch money is then held by the Company in trust and is not required for suchpurpose it shall be discharged from such trust.

 

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## **SECTION 3.6.SECURITIES REDEEMED IN PART.**

## ** **

Upon surrenderof a Floating Rate Security that is redeemed in part, the Company shall executeand the Trustee shall authenticate and deliver to the Holder, without servicecharge, a new Floating Rate Security in an authorized denomination equal inprincipal amount to, and in exchange for, the unredeemed portion of theFloating Rate Security surrendered.

 

## **SECTION 3.7.[Intentionally Omitted]**.

 

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

 

### (a)   If at any time that Securities remainoutstanding there shall occur a Change in Control, Securities shall bepurchased by the Company at the option of the Holders, as of the date that is30 Business Days after the occurrence of the Change in Control (the“Change in Control Purchase Date”) at a purchase price equal to 100% of theprincipal amount of the Securities, together with accrued and unpaid interestand Additional Interest, if any, to, but excluding, the Change in ControlPurchase Date (the “Change in Control Purchase Price”), subject to satisfactionby or on behalf of any Holder of the requirements set forth insubsection (c) of this Section 3.8.

###  

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

 

#### (1)   any “person” or “group” (as such terms aredefined below) is or becomes the “beneficial owner” (as defined below) ofshares of Voting Stock of the Company representing 50% or more of the totalvoting 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 ofDirectors of the Company; or

####  

#### (2)   the Company consolidates with, or merges withor into, another Person or the Company sells, assigns, conveys, transfers,leases or otherwise disposes of all or substantially all of the assets of theCompany, 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 Personsthat “beneficially owned” (as defined below) shares of Voting Stock of theCompany immediately prior to such transaction “beneficially own” (as definedbelow) shares of Voting Stock of the Company representing at least a majorityof the total voting power of all outstanding Voting Stock of the surviving ortransferee Person; or

####  

#### (3)   the holders of capital stock of the Companyapprove 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 thedefinition of “Change in Control”, (i) ”person” and “group” have themeanings given such terms under Section 13(d) and 14(d) of the ExchangeAct 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 ofsecurities within the meaning of Rule 13d-5(b)(1) under the Exchange Act(or any successor provision thereto), (ii) a “beneficial owner” shall bedetermined in accordance with Rule 13d-3 under the

 

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Exchange Act, as ineffect on the date of this Indenture, except that the number of shares ofVoting Stock of the Company shall be deemed to include, in addition to alloutstanding shares of Voting Stock of the Company and Unissued Shares deemed tobe held by the “person” or “group” (as such terms are defined above) or otherPerson 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) theterms “beneficially owned” and “beneficially own” shall have meanings correlativeto that of “beneficial owner”.  The term“Unissued Shares” means shares of Voting Stock not outstanding that are subjectto options, warrants, rights to purchase or conversion privileges exercisablewithin 60 days of the date of determination of a Change in Control.

 

Notwithstanding anythingto the contrary set forth in this Section 3.8, a Change in Control willnot be deemed to have occurred if either:

 

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

####  

#### (2)   in the case of a merger or consolidation, atleast 50% of the consideration by value in the merger or consolidationconstituting the Change in Control consists of common stock or AmericanDepositary Receipts (or other securities representing common equity interests)and any associated rights traded on a United States national securitiesexchange or quoted on the Nasdaq National Market (or which will be so traded orquoted when issued or exchanged in connection with such Change in Control) andas a result of such transaction or transactions at least 50% of the value of theconsideration for which the Securities become convertible consists of suchcommon stock or American Depositary Receipts (or other securities representingcommon equity interests) and associated rights.  The value of common stock, American Depositary Receipts or othersecurities representing common equity interests shall be the closing pricetherefor 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 fairmarket value thereof on such date.

####  

### (b)   Within 10 Business Days after the occurrenceof a Change in Control, the Company shall mail a written notice (“**CompanyNotice**”) 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 aChange in Control Purchase Notice to be completed by the Holder and shallstate:

###  

#### (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 ControlPurchase 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 theCompany to purchase the Securities;

####  

#### (6)         briefly, the conversion rights of theSecurities;

 

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

####  

#### (8)         the Conversion Price and anyadjustments thereto;

####  

#### (9)         that Securities as to which a Change inControl Purchase Notice has been given may be converted into Common Stockpursuant to Article 4 of this Indenture only to the extent that the Changein Control Purchase Notice has been withdrawn in accordance with the terms ofthis Indenture;

####  

#### (10)       the procedures that the Holder mustfollow to exercise rights under this Section 3.8;

####  

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

####  

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

####  

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

####  

If any of the Securitiesis in the form of a Global Security, then the Company shall modify such noticeto the extent necessary to accord with the procedures of the Depositaryapplicable to the repurchase of Global Securities.

 

In the event the Companyhas elected to pay the Change in Control Purchase Price (or a specifiedpercentage thereof) with shares of Common Stock or other securities, theCompany Notice shall state, in addition to the items specified above, (i) thateach Holder will receive a number of shares of Common Stock or other securitiesequal to the quotient obtained by dividing (x) the portion of the Changein Control Purchase Price to be paid in shares of Common Stock or othersecurities, by (y) 97% of the average of the Closing Prices of the CommonStock or such other securities for the 15 Trading Days immediately preceding andincluding the third Trading Day prior to the Repurchase Date (except any cashamount to be paid in lieu of fractional shares); and (ii) that because themarket price of shares of common stock or other securities will be determinedprior to the Change in Control Purchase Date, Holders of the Securities willbear the market risk with respect to the value of such securities to bereceived from the date such market price is determined to the Change in ControlPurchase Date.

 

### (c)   A Holder may exercise its rights specified insubsection (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-2hereto, as applicable, and which may be delivered by letter, overnight courier,hand delivery, facsimile transmission or in any other written form and, in thecase of Global Securities, may be delivered electronically or by other means inaccordance with the Depositary’s customary procedures) of the exercise of suchrights (a “**Change in Control Purchase Notice**”) to any Paying Agent at anytime prior to the close of business on the Business Day next preceding theChange in Control Purchase Date.

 

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

 

The Company shallpurchase from the Holder thereof, pursuant to this Section 3.8, a portionof a Security if the principal amount of such portion is $1,000 or an integralmultiple of $1,000.  Provisions of theIndenture that apply to the purchase of all of a Security pursuant toSections 3.8 through 3.14 also apply to the purchase of such portion ofsuch Security.

 

Notwithstanding anythingherein to the contrary, any Holder delivering to a Paying Agent the Change inControl Purchase Notice contemplated by this subsection (c) shall have theright to withdraw such Change in Control Purchase Notice in whole or in aportion thereof that is a principal amount of $1,000 or in an integral multiplethereof at any time prior to the close of business on the Business Day nextpreceding the Change in Control Purchase Date by delivery of a written notice ofwithdrawal to the Paying Agent in accordance with Section 3.10.

 

A Paying Agent shallpromptly notify the Company of the receipt by it of any Change in ControlPurchase Notice or written withdrawal thereof.

 

Anything herein to thecontrary notwithstanding, in the case of Global Securities, any Change inControl Purchase Notice may be delivered or withdrawn and such Securities maybe surrendered or delivered for purchase in accordance with the ApplicableProcedures as in effect from time to time.

 

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

 

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

 

### (a)   The Company may elect to pay the Change inControl Purchase Price of the Securities to be purchased on any Change inControl Purchase Date pursuant to Section 3.2 in cash or Common Stock or, inthe case of a merger in which the Company is not the surviving corporation,common stock or American Depositary Receipts (or other securities representingcommon equity interests) of the surviving corporation or its direct or indirectparent corporation, or any combination of cash and stock, subject to theconditions set forth in this Section 3.9(a) and Section 3.9(b).  All Holders whose Securities are purchasedon a Change in Control Purchase Date pursuant to this Section 3.9 shall receivethe same percentage of cash or common stock or American Depositary Receipts (orother securities representing common equity interests) in payment of the Changein Control Purchase Price for such Securities, except (i) as provided inSection 3.9(b) with regard to the payment of cash in lieu of fractional CommonStock and (ii) in the event that the Company is unable to purchase theSecurities of a Holder or Holders for Common Stock because any necessaryqualifications or registrations of the common stock or American DepositaryReceipts (or other securities representing common equity interests) underapplicable state securities laws cannot be obtained, the Company may purchasethe Securities of such Holder or Holders for cash. The Company may not changeits election with respect to the consideration (or components or percentages ofcomponents thereof) to be paid once the Company has given its Company Notice toSecurityholders except pursuant to this Section 3.9(a) or pursuant to Section3.9(b) in the event of a

 

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

###  

### (b)   In each case in which the Company haselected, pursuant to Section 3.9(a), to pay all or a portion of the Change inControl Purchase Price with common stock or American Depositary Receipts (orother securities representing common equity interests), the number of commonstock or American Depositary Receipts (or other securities representing commonequity interests) that shall be payable shall be equal to the quotient obtainedby dividing (i) the relevant amount of the Change in Control Purchase Price tobe paid in common stock or American Depositary Receipts (or other securitiesrepresenting common equity interests) by (ii) 97% of the average of the ClosingPrices of the common stock or American Depositary Receipts (or other securitiesrepresenting common equity interests) for the 15 Trading Days immediatelypreceding and including the third Trading Day prior to the Repurchase Date (the“**MarketPrice**”), subject to the next succeeding paragraph.

###  

In lieu of delivering afractional common stock or American Depositary Receipts (or other securitiesrepresenting common equity interests) in payment of the Change in ControlPurchase Price, the Company will pay cash for the Market Price of thefractional share or American Depositary Receipt (or other security representingcommon equity interests).  If a Holderelects to have more than one Security purchased, the number of common stock orAmerican Depositary Receipts (or other securities representing common equityinterests) shall be based on the aggregate amount of Securities to bepurchased.

 

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

 

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

####  

#### •                  the registration of the common stockor American Depositary Receipts (or other securities representing common equityinterests) to be issued upon repurchase under the Securities Act and theExchange Act;

####  

#### •                  any necessary qualification orregistration of the common stock or American Depositary Receipts (or othersecurities representing common equity interests) to be issued upon repurchaseunder applicable state securities laws or the availability of an exemption fromsuch qualification and registration;

####  

#### •                  listing of the common stock orAmerican Depositary Receipts (or other securities representing common equityinterests) on a United States national securities exchange or quotation thereofin an inter-dealer quotation system of any registered United States nationalsecurities association; and

 

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#### •                  the receipt by the Trustee of anOfficers’ Certificate and an Opinion of Counsel each stating that the terms ofthe delivery of the common stock or American Depositary Receipts (or othersecurities representing common equity interests) are in conformity with thisIndenture, that the conditions above have been satisfied and that thesecurities being issued will be validly issued, fully paid and non-assessableand free of pre-emptive rights.  TheOfficers’ Certificate shall also set forth the number of common stock orAmerican Depositary Receipts (or other securities representing common equityinterests) to be delivered for each $1,000 Principal Amount of Securities andthe daily prices of the common stock or American Depositary Receipts (or othersecurities representing common equity interests) used to calculate the averageof the Closing Prices of the common stock or American Depositary Receipts (orother securities representing common equity interests).

####  

If the foregoingconditions are not satisfied with respect to a Holder or Holders prior to theclose of business on the last day prior to the Change in Control Purchase Dateand the Company has elected to purchase the Securities pursuant to this Section3.9 through the delivery of common stock or American Depositary Receipts (orother securities representing common equity interests), the Company shall paythe entire Change in Control Purchase Price of the Securities of such Holder orHolders in cash.

 

**SECTION 3.10. EFFECT OF CHANGE INCONTROL PURCHASE NOTICE.**

 

Upon receipt by anyPaying Agent of the Change in Control Purchase Notice specified inSection 3.8(c), the Holder of the Security in respect of which such Changein Control Purchase Notice was given shall (unless such Change in ControlPurchase Notice is withdrawn as specified below) thereafter be entitled toreceive the Change in Control Purchase Price with respect to suchSecurity.  Such Change in ControlPurchase Price shall be paid to such Holder promptly following the later of(a) the Change in Control Purchase Date with respect to such Security (providedthe conditions in Section 3.8(c) have been satisfied) and (b) thetime of delivery of such Security to a Paying Agent by the Holder thereof inthe manner required by Section 3.8(c). Securities in respect of which a Change in Control Purchase Notice hasbeen given by the Holder thereof may not be converted into shares of CommonStock pursuant to Article 4 on or after the date of the delivery of suchChange in Control Purchase Notice unless such Change in Control Purchase Noticehas first been validly withdrawn.

 

A Change in ControlPurchase Notice may be withdrawn by means of a written notice (which may bedelivered by mail, overnight courier, hand delivery, facsimile transmission orin any other written form and, in the case of Global Securities, may bedelivered electronically or by other means in accordance with the Depositary’scustomary procedures) of withdrawal delivered by the Holder to a Paying Agentat any time prior to the close of business on the Business Day immediatelypreceding the Change in Control Purchase Date, specifying the principal amountof the Security or portion thereof (which must be a principal amount of $1,000or an integral multiple of $1,000 in excess thereof) with respect to which suchnotice of withdrawal is being submitted.

 

**SECTION 3.11. DEPOSIT OF CHANGE INCONTROL PURCHASE PRICE.**

 

On or before 11:00 a.m.New York City time on the Change in Control Purchase Date, the Company shalldeposit with the Trustee or with a Paying Agent (other than the Company or anAffiliate of the Company) an amount of money (in immediately available funds ifdeposited on such Change in Control Purchase Date) or securities sufficient topay the aggregate Change in Control Purchase Price of

 

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

 

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

 

The Company shall pay anydocumentary, stamp or similar issue or transfer tax due on any issuance of suchSecurities.

 

**SECTION3.12. SECURITIES PURCHASED IN PART.**

 

Any Security that is tobe 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 shallexecute and the Trustee shall authenticate and deliver to the Holder of suchSecurity, without service charge, a new Security or Securities, of suchauthorized denomination or denominations as may be requested by such Holder, inaggregate principal amount equal to, and in exchange for, the portion of theprincipal amount of the Security so surrendered that is not purchased.

 

## **SECTION 3.13.COMPLIANCE WITH SECURITIES LAWS UPON PURCHASE OF SECURITIES**

 

In connection with anyoffer to purchase or purchase of Securities under Section 3.2, the Companyshall (a) comply with Rule 13e-4 and Rule 14e-1 (or anysuccessor 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 complywith all federal and state securities laws in connection with such offer topurchase or purchase of Securities, all so as to permit the rights of theHolders and obligations of the Company under Sections 3.2 through 3.5 tobe exercised in the time and in the manner specified therein.

 

**SECTION 3.14. REPAYMENT TO THECOMPANY.**

 

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

 

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# **ARTICLE4CONVERSION**

# ** **

## **SECTION 4.1.CONVERSION PRIVILEGE**

## ** **

Subject to the furtherprovisions of this Article 4 and the applicable paragraph of theSecurities, a Holder of a Security may convert the principal amount of suchSecurity (or any portion thereof equal to $1,000 or any integral multiple of$1,000 in excess thereof) into Common Stock (and any associated rightsrepresented thereby, including rights affected thereto pursuant to theCompany’s Rights Plan in effect on the date hereof) at any time prior to theclose of business on the Final Maturity Date, at the Conversion Price then ineffect; provided, however, that, if such Security is submitted orpresented for purchase or redemption pursuant to Article 3, suchconversion right shall terminate at the close of business on the Business Dayimmediately preceding the Redemption Date or the Change in Control PurchaseDate for such Security (unless the Company shall default in making theRedemption Price or Change in Control Purchase Price payment when due, in whichcase the conversion right shall terminate at the close of business on the datesuch default is cured and such Security is purchased).  The number of shares of Common Stockissuable upon conversion of a Security shall be determined by dividing theprincipal amount of the Security or portion thereof surrendered for conversionby the Conversion Price in effect on the Conversion Date.  The initial Conversion Price is set forth inthe form of the Securities of each series and is subject to adjustment asprovided in this Article 4.

 

Provisions of thisIndenture that apply to conversion of all of a Security also apply toconversion of a portion of a Security.

 

A Security in respect ofwhich a Holder has delivered a Change in Control Purchase Notice pursuant toSection 3.8(c) exercising the option of such Holder to require the Companyto purchase such Security may be converted only if such Change in ControlPurchase Notice is withdrawn by a written notice of withdrawal delivered to aPaying Agent prior to the close of business on the Business Day immediatelypreceding the Change in Control Purchase Date in accordance withSection 3.9.

 

A Holder of Securities isnot entitled to any rights of a holder of Common Stock until such Holder hasconverted its Securities to Common Stock, and only to the extent suchSecurities are deemed to have been converted into Common Stock pursuant to thisArticle 4.

 

**SECTION 4.2. CONVERSION PROCEDURE.**

 

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

 

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The person in whose namethe Common Stock certificate is registered shall be deemed to be a stockholderof record on the Conversion Date; provided, however, that nosurrender of a Security on any date when the stock transfer books of theCompany shall be closed shall be effective to constitute the person or personsentitled to receive the shares of Common Stock upon such conversion as therecord holder or holders of such shares of Common Stock on such date, but suchsurrender shall be effective to constitute the person or persons entitled toreceive such shares of Common Stock as the record holder or holders thereof forall purposes at the close of business on the next succeeding day on which suchstock transfer books are open; provided, further, that suchconversion shall be at the Conversion Price in effect on the Conversion Date asif the stock transfer books of the Company had not been closed.  Upon conversion of a Security, such personshall no longer be a Holder of such Security. No payment or adjustment will be made for accrued interest (except asset forth below) or for dividends or distributions on shares of Common Stockissued upon conversion of a Security. Accrued interest shall be deemed paid through delivery of Common Stockupon conversion.

 

Interest or AdditionalInterest, if any, shall be payable to such registered Holder notwithstandingthe conversion of a Security after a regular record date and prior to theinterest payment date, subject to the provisions of this Indenture relating tothe payment of defaulted interest or Additional Interest, if any, by theCompany.  Securities so surrendered forconversion (in whole or in part) during the period from the close of businesson any regular record date to the opening of business on the next succeedinginterest payment date, if any, shall also be accompanied by payment in fundsacceptable to the Company of an amount equal to the interest or AdditionalInterest, if any, payable on such interest payment date on the principal amountof such Security then being converted. The preceding sentence does not apply, however, if (1) the Company hasspecified a Redemption Date that is after a record date for an interest paymentbut on or prior to the corresponding interest payment date or (2) any overdueinterest 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 theamount of the interest payment that the Holder will receive that representsoverdue interest, but will be required to pay the Company for the amount of theinterest payment that the Holder will receive that represents payment ofinterest that is not overdue).  Exceptas otherwise provided in this Section 4.2, no payment or adjustment willbe made for accrued interest or Additional Interest, if any, on a convertedSecurity.  If the Company defaults inthe payment of interest or Additional Interest, if any, payable on suchinterest payment date, the Company shall promptly repay such funds to suchHolder.

 

Nothing in thisSection shall affect the right of a Holder in whose name any Security isregistered at the close of business on a record date to receive the interestand Additional Interest, if any, payable on such Security on the interestpayment date in accordance with the terms of this Indenture, the Securities andthe Registration Rights Agreement.  If aHolder converts more than one Security at the same time, the number of sharesof Common Stock issuable upon the conversion shall be based on the aggregateprincipal amount of Securities converted.

 

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

 

**SECTION 4.3. FRACTIONAL SHARES.**

 

The Company will notissue fractional shares of Common Stock upon conversion of Securities.  In lieu thereof, the Company will pay anamount in cash for the current market value of the fractional shares.  The cash amount paid in lieu of fractionalshares shall be determined, (calculated to the nearest

 

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

 

**SECTION 4.4. TAXES ON CONVERSION.**

 

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

 

**SECTION 4.5. COMPANY TO PROVIDESTOCK.**

 

The Company shall, priorto issuance of any Securities hereunder, and from time to time as may benecessary, reserve, out of its authorized but unissued Common Stock, asufficient number of shares of Common Stock to permit the conversion of alloutstanding Securities into shares of Common Stock.

 

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

 

The Company will endeavorpromptly to comply with all federal and state securities laws regulating theoffer and delivery of shares of Common Stock upon conversion of Securities, ifany, and will list or cause to have quoted such shares of Common Stock on eachnational securities exchange or on the Nasdaq National Market or otherover-the-counter market or such other market on which the Common Stock is thenlisted or quoted.  Any Common Stockissued upon conversion of a Security hereunder which at the time of conversionwas a Restricted Security will also be a Restricted Security.

 

**SECTION4.6. ADJUSTMENT OF CONVERSION PRICE.**

 

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

 

### (a)   In case the Company shall (i) pay adividend on its Common Stock in shares of Common Stock, (ii) make adistribution on its Common Stock in shares of Common Stock,(iii) subdivide its outstanding Common Stock into a greater number ofshares, or (iv) combine its outstanding Common Stock into a smaller number ofshares, the Conversion Price in effect immediately prior thereto shall beadjusted so that the Holder of any Security thereafter surrendered forconversion shall be entitled to receive that number of shares of Common Stockwhich it would have owned had such Security been converted immediately prior tothe happening of such event.  Anadjustment made pursuant to this subsection (a) shall become effectiveimmediately after the record date in the case of a dividend or distribution andshall become effective immediately after the effective date in the case ofsubdivision of combination.

 

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### (b)   In case the Company shall issue rights orwarrants 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 subscribefor or purchase shares of Common Stock (or securities convertible into CommonStock) at a price per share (or having a conversion price per share) less thanthe Current Market Price per share of Common Stock (as determined in accordancewith subsection (d) of this Section 4.6) on the record date for thedetermination of stockholders entitled to receive such rights or warrants, theConversion Price in effect immediately prior thereto shall be adjusted so thatthe same shall equal the price determined by multiplying the Conversion Pricein effect immediately prior to such record date by a fraction of which thenumerator shall be the number of shares of Common Stock outstanding on suchrecord date plus the number of shares which the aggregate offering price of thetotal number of shares of Common Stock so offered (or the aggregate conversionprice of the convertible securities so offered, which shall be determined bymultiplying the number of shares of Common Stock issuable upon conversion ofsuch convertible securities by the conversion price per share of Common Stockpursuant to the terms of such convertible securities) would purchase at theCurrent Market Price per share (as defined in subsection (d) of thisSection 4.6) of Common Stock on such record date, and of which thedenominator shall be the number of shares of Common Stock outstanding on suchrecord date plus the number of additional shares of Common Stock offered (orinto which the convertible securities so offered are convertible).  Such adjustment shall be made successivelywhenever any such rights or warrants are issued, and shall become effectiveimmediately after such record date.  Ifat the end of the period during which such rights or warrants are exercisablenot all rights or warrants shall have been exercised, the adjusted ConversionPrice shall be immediately readjusted to what it would have been based upon thenumber of additional shares of Common Stock actually issued (or the number ofshares of Common Stock issuable upon conversion of convertible securitiesactually issued).

###  

### (c)   In case the Company shall distribute to allor substantially all holders of its Common Stock any shares of capital stock ofthe Company (other than Common Stock), evidences of indebtedness or otherassets (including securities of any person other than the Company but excluding(1) dividends or distributions paid exclusively in cash referred to inSection 4.6(c)(2) below or (2) dividends or distributions referred to insubsection (a) of this Section 4.6), or shall distribute to all orsubstantially all holders of its Common Stock rights or warrants to subscribe foror purchase any securities (excluding those rights and warrants referred to insubsection (b) of this Section 4.6), then in each such case theConversion Price shall be adjusted so that the same shall equal the pricedetermined by multiplying the current Conversion Price by a fraction of whichthe numerator shall be the Current Market Price per share (as defined insubsection (d) of this Section 4.6) of the Common Stock on the recorddate mentioned below less the fair market value on such record date (asdetermined in good faith by the Board of Directors, whose determination shallbe evidenced by an Officers’ Certificate delivered to the Trustee) of theportion of the capital stock, evidences of indebtedness or other assets sodistributed or of such rights or warrants applicable to one share of CommonStock (determined on the basis of the number of shares of Common Stockoutstanding on the record date), and of which the denominator shall be theCurrent Market Price per share (as defined in subsection (d) of thisSection 4.6) of the Common Stock on such record date.  Such adjustment shall be made successivelywhenever any such distribution is made and shall become effective immediatelyafter the record date for the determination of stockholders entitled to receivesuch distribution.

###  

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

 

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each holder of a Security shall have the right toreceive upon conversion the amount of capital stock, evidences of indebtednessor other assets so distributed or of such rights or warrants such holder wouldhave received had such holder converted each Security on such record date.  In the event that such dividend ordistribution is not so paid or made, the Conversion Price shall again beadjusted to be the Conversion Price which would then be in effect if suchdividend or distribution had not been declared.  If the Board of Directors determines the fair market value of anydistribution for purposes of this Section 4.6(c) by reference to theactual or when issued trading market for any securities, it must in doing soconsider the prices in such market over the same period used in computing theCurrent Market Price of the Common Stock.

 

Rights (including rightsissued under the Company’s Rights Plan as in effect on the date hereof) orwarrants distributed by the Company to all holders of Common Stock entitlingthe holders thereof to subscribe for or purchase shares of the Company’sCapital Stock (either initially or under certain circumstances), which rightsor warrants, until the occurrence of a specified event or events (“TriggerEvent”):  (i) are deemed to betransferred 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 thisSection 4.6 (and no adjustment to the Conversion Price under this Section 4.6will be required) until the occurrence of the earliest Trigger Event, whereuponsuch rights and warrants shall be deemed to have been distributed and anappropriate adjustment to the Conversion Price shall be made under thisSection 4.6(c).  If any such rightor warrant, including any such existing rights or warrants distributed prior tothe date of this Indenture, are subject to events, upon the occurrence of whichsuch rights or warrants become exercisable to purchase different securities, evidencesof indebtedness or other assets, then the date of the occurrence of any andeach such event shall be deemed to be the date of distribution and record datewith respect to new rights or warrants with such rights (and a termination orexpiration of the existing rights or warrants without exercise by any of theholders thereof).  In addition, in theevent of any distribution (or deemed distribution) of rights or warrants, orany Trigger Event or other event (of the type described in the precedingsentence) with respect thereto that was counted for purposes of calculating adistribution amount for which an adjustment to the Conversion Price under thisSection 4.6 was made, (1) in the case of any such rights or warrantswhich shall all have been redeemed or repurchased without exercise by anyholders thereof, the Conversion Price shall be readjusted upon such finalredemption 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 pershare redemption or repurchase price received by a holder or holders of CommonStock with respect to such rights or warrants (assuming such holder hadretained such rights or warrants), made to all holders of Common Stock as ofthe date of such redemption or repurchase, and (2) in the case of suchrights or warrants which shall have expired or been terminated without exerciseby any holders thereof, the Conversion Price shall be readjusted as if suchrights and warrants had not been issued.

 

#### (1)    In case the Company shall, by dividendor otherwise, at any time distribute (a “**Triggering Distribution**”) to all orsubstantially all holders of its Common Stock cash in an aggregate amount that,together with the aggregate amount of (A) any cash and the fair marketvalue (as determined in good faith by the Board of Directors, whosedetermination shall be evidenced by an Officers’ Certificate delivered to theTrustee) of any other consideration payable in respect of any tender offer bythe Company or a Subsidiary of the Company for Common Stock consummated withinthe 12 months preceding the date of payment of the Triggering Distributionand in respect of which no Conversion Price adjustment pursuant to thisSection 4.6 has been made and (B) all other cash distributions to allor substantially all holders of its Common Stock made within the 12 monthspreceding the date of payment of the Triggering Distribution and in respect ofwhich no Conversion Price adjustment pursuant to this

 

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Section 4.6 has been made, exceeds an amountequal to 10.0% of the product of the Current Market Price per share of CommonStock (as determined in accordance with subsection (d) of thisSection 4.6) on the Business Day (the “**Determination Date**”)immediately preceding the day on which such Triggering Distribution is declaredby the Company multiplied by the number of shares of Common Stock outstandingon the Determination Date (excluding shares held in the treasury of theCompany), the Conversion Price shall be reduced so that the same shall equalthe price determined by multiplying such Conversion Price in effect immediatelyprior to the Determination Date by a fraction of which the numerator shall bethe Current Market Price per share of the Common Stock (as determined inaccordance with subsection (d) of this Section 4.6) on theDetermination Date less the sum of the aggregate amount of cash and theaggregate 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 12months (including, without limitation, the Triggering Distribution) applicableto one share of Common Stock (determined on the basis of the number of sharesof Common Stock outstanding on the Determination Date) and the denominatorshall be such Current Market Price per share of the Common Stock (as determinedin accordance with subsection (d) of this Section 4.6) on theDetermination Date, such reduction to become effective immediately prior to theopening of business on the day following the date on which the TriggeringDistribution is paid.

####  

#### (2)   In case any tender offer made by the Companyor any of its Subsidiaries for Common Stock shall expire and such tender offer(as amended upon the expiration thereof) shall involve the payment of aggregateconsideration in an amount (determined as the sum of the aggregate amount ofcash consideration and the aggregate fair market value (as determined in goodfaith by the Board of Directors, whose determination shall be evidenced by anOfficers’ Certificate delivered to the Trustee thereof) of any otherconsideration) that, together with the aggregate amount of (A) any cashand the fair market value (as determined in good faith by the Board of Directors,whose determination shall be evidenced by an Officers’ Certificate delivered tothe Trustee) of any other consideration payable in respect of any other tenderoffers by the Company or any Subsidiary of the Company for Common Stockconsummated within the 12 months preceding the date of the Expiration Date (asdefined below) and in respect of which no Conversion Price adjustment pursuantto this Section 4.6 has been made and (B) all cash distributions toall or substantially all holders of its Common Stock made within the 12 monthspreceding the Expiration Date and in respect of which no Conversion Priceadjustment pursuant to this Section 4.6 has been made, exceeds an amountequal to 10.0% of the product of the Current Market Price per share of CommonStock (as determined in accordance with subsection (d) of thisSection 4.6) as of the last date (the “**Expiration Date**”) tenderscould have been made pursuant to such tender offer (as it may be amended) (thelast time at which such tenders could have been made on the Expiration Date ishereinafter sometimes called the “**Expiration Time**”) multiplied by the numberof shares of Common Stock outstanding (including tendered shares but excludingany 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 ExpirationDate, the Conversion Price shall be reduced so that the same shall equal theprice determined by multiplying the Conversion Price in effect immediatelyprior to the close of business on the Expiration Date by a fraction of whichthe numerator shall be the product of the number of shares of Common Stockoutstanding (including tendered shares but excluding any shares held in thetreasury of the Company) at the Expiration Time multiplied by the CurrentMarket Price per share of the Common Stock (as determined in accordance withsubsection (d) of this Section 4.6) on the Trading Day nextsucceeding the Expiration Date and the denominator shall be the sum of (x) theaggregate consideration (determined as aforesaid) payable to stockholders basedon the acceptance (up to any maximum specified in the terms of the tenderoffer) of all shares validly tendered and not withdrawn as of the ExpirationTime (the shares deemed so accepted, up to any such maximum, being referred toas the “Purchased Shares”) and (y) the

####  

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

####  

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

####  

### (d)   For the purpose of any computation undersubsections (b) and (c) of this Section 4.6, the current market price(the “**CurrentMarket Price**”) per share of Common Stock on any date shall be deemedto be the average of the daily closing prices for the 30 consecutiveTrading Days commencing 45 Trading Days before (i) the DeterminationDate or the Expiration Date, as the case may be, with respect to distributionsor tender offers under subsection (c) of this Section 4.6 or(ii) the record date with respect to distributions, issuances or otherevents requiring such computation under subsection (b) or (c) of thisSection 4.6.  The closing price(the “**ClosingPrice**”) for each day shall be the last reported sales price or, incase no such reported sale takes place on such date, the average of thereported closing bid and asked prices in either case on the Nasdaq NationalMarket or, if the Common Stock is not listed or admitted to trading on theNasdaq National Market, on the principal national securities exchange on whichthe Common Stock is listed or admitted to trading or, if not listed or admittedto 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, incase no reported sales takes place, the average of the closing bid and askedprices as quoted on NASDAQ or any comparable system or, if the Common Stock isnot quoted on NASDAQ or any comparable system, the closing sales price or, incase no reported sale takes place, the average of the closing bid and askedprices, as furnished by any two members of the National Association ofSecurities Dealers, Inc. selected from time to time by the Company for thatpurpose.  If no such prices areavailable, the Current Market Price per share shall be the fair value of ashare of Common Stock as determined in good faith by the Board of Directors(which shall be evidenced by an Officers’ Certificate delivered to theTrustee).

###  

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

 

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

###  

**SECTION 4.7. NO ADJUSTMENT.**

 

No adjustment in theConversion Price shall be required if Holders may participate in thetransactions set forth in Section 4.6 above without converting.

 

No adjustment in theConversion Price shall be required unless the adjustment would require anincrease 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 arenot required to be made shall be carried forward and taken into account in anysubsequent adjustment.  All calculationsunder this Article 4 shall be made to the nearest one-tenth of a cent orto the nearest one-hundredth of a share, as the case may be.

 

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

 

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

 

**SECTION4.8. ADJUSTMENT FOR TAX PURPOSES.**

 

The Company shall, upon15 days prior notice, be entitled to make such reductions in the ConversionPrice, in addition to those required by Section 4.6, as it in itsdiscretion shall determine to be advisable in order that any stock dividends,subdivisions of shares, distributions of rights to purchase stock or securitiesor distributions of securities convertible into or exchangeable for stockhereafter made by the Company to its stockholders shall not be taxable.

 

**SECTION 4.9. NOTICE OF ADJUSTMENT.**

 

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

 

**SECTION4.10.****NOTICEOF CERTAIN TRANSACTIONS****.**

 

In the event that:

 

#### (1)   the Company takes any action which wouldrequire an adjustment in the Conversion Price;

 

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#### (2)   the Company consolidates or merges with, ortransfers all or substantially all of its property and assets to, anothercorporation and stockholders of the Company must approve the transaction; or

####  

#### (3)   there is a dissolution or liquidation of theCompany,

####  

#### the Company shall mail to Holders and file with theTrustee a notice stating the proposed record or effective date, as the case maybe.  The Company shall mail the noticeat least ten days before such date. Failure to mail such notice or any defect therein shall not affect thevalidity of any transaction referred to in clause (1), (2) or (3) of thisSection 4.10.

####  

**SECTION4.11. EFFECT OF RECLASSIFICATION, CONSOLIDATION, MERGER OR SALE ON CONVERSIONPRIVILEGE.**

 

If any of the followingshall occur, namely:  (a) anyreclassification or change of shares of Common Stock issuable upon conversionof the Securities (other than a change in par value, or from par value to nopar value, or from no par value to par value, or as a result of a subdivisionor combination, or any other change for which an adjustment is provided inSection 4.6); (b) any consolidation or merger or combination to whichthe Company is a party or (c) any sale or conveyance of all orsubstantially all of the property and assets of the Company, directly orindirectly, to any person, then the Company, or such successor, purchasing ortransferee corporation, as the case may be, shall, as a condition precedent tosuch reclassification, change, combination, consolidation, merger, sale orconveyance, execute and deliver to the Trustee a supplemental indentureproviding that the Holder of each Security then outstanding shall have theright to convert such Security into the kind and amount of shares of stock andother securities and property (including cash) receivable upon suchreclassification, change, combination, consolidation, merger, sale orconveyance by a holder of the number of shares of Common Stock deliverable uponconversion of such Security immediately prior to such reclassification, change,combination, consolidation, merger, sale or conveyance based on the assumptionthat the Holder would not have exercised any rights of election that the Holderwould have had as a Holder of Common Stock to select a particular type ofconsideration.  Such supplemental indentureshall provide for adjustments of the Conversion Price which shall be as nearlyequivalent as may be practicable to the adjustments of the Conversion Priceprovided for in this Article 4. If, in the case of any such consolidation, merger, combination, sale orconveyance, the stock or other securities and property (including cash)receivable thereupon by a holder of Common Stock include shares of stock orother securities and property of a person other than the successor, purchasingor transferee corporation, as the case may be, in such consolidation, merger,combination, sale or conveyance, then such supplemental indenture shall also beexecuted by such other person and shall contain such additional provisions toprotect the interests of the Holders of the Securities as the Board of Directorsshall reasonably consider necessary by reason of the foregoing.  The provisions of this Section 4.11shall similarly apply to successive reclassifications, changes, combinations,consolidations, mergers, sales or conveyances.

 

In the event the Companyshall execute a supplemental indenture pursuant to this Section 4.11, theCompany shall promptly file with the Trustee (x) an Officers’ Certificatebriefly stating the reasons therefor, the kind or amount of shares of stock orother securities or property (including cash) receivable by Holders of theSecurities upon the conversion of their Securities after any suchreclassification, change, combination, consolidation, merger, sale orconveyance, any adjustment to be made with respect

 

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

 

**SECTION 4.12. TRUSTEE’S DISCLAIMER.**

 

The Trustee shall have noduty 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 asconclusive evidence of that fact or the correctness of any such adjustment, andshall be protected in relying upon, an Officers’ Certificate including theOfficers’ Certificate with respect thereto which the Company is obligated tofile with the Trustee pursuant to Section 4.9.  The Trustee makes no representation as to the validity or valueof any securities or assets issued upon conversion of Securities, and theTrustee shall not be responsible for the Company’s failure to comply with anyprovisions of this Article 4.

 

The Trustee shall not beunder any responsibility to determine the correctness of any provisionscontained in any supplemental indenture executed pursuant to Section 4.11,but may accept as conclusive evidence of the correctness thereof, and shall befully protected in relying upon, the Officers’ Certificate with respect theretowhich the Company is obligated to file with the Trustee pursuant toSection 4.11.

 

**SECTION 4.13. VOLUNTARY REDUCTION.**

 

The Company from time totime may reduce the Conversion Price by any amount for any period of time ifthe period is at least 20 days and if the reduction is irrevocable during theperiod if our Board of Directors determines that such reduction would be in thebest interest of the Company, and the Company provides 15 days prior notice ofany reduction in the Conversion Price; provided, however, that inno event may the Company reduce the Conversion Price to be less than the parvalue of a share of Common Stock.

 

# **ARTICLE5SUBORDINATION**

# ** **

**SECTION5.1. AGREEMENT OF SUBORDINATION.**

 

The Company covenants andagrees, and each Holder of Securities issued hereunder by its acceptancethereof likewise covenants and agrees, that all Securities shall be issuedsubject to the provisions of this Article 5; and each Person holding anySecurity, whether upon original issue or upon transfer, assignment or exchangethereof, accepts and agrees to be bound by such provisions.

 

The payment of theprincipal of, premium, if any, interest and Additional Interest, if any, on allSecurities (including, but not limited to, the Redemption Price and the Changein Control Purchase Price with respect to the Securities subject to redemptionor 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 incash or other payment satisfactory to the holders of Senior Indebtedness of allSenior Indebtedness, whether outstanding at the date of this Indenture orthereafter incurred.

 

No provision of thisArticle 5 shall prevent the occurrence of any default or Event of Defaulthereunder.

 

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**SECTION 5.2. PAYMENTS TO HOLDERS.**

 

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

 

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

 

(ii)           a default, other than a paymentdefault, on a Designated Senior Indebtedness occurs and is continuing that thenpermits holders of such Designated Senior Indebtedness to accelerate itsmaturity and the Trustee receives a notice of the default (a “**PaymentBlockage Notice**”) from a Representative or holder of DesignatedSenior Indebtedness or the Company.

 

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

 

The Company may and shallresume payments on and distributions in respect of the Securities upon theearlier of:

 

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

###  

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

###  

Upon any payment by theCompany, or distribution of assets of the Company of any kind or character,whether in cash, property or securities, to creditors upon any dissolution orwinding-up or liquidation or reorganization of the Company (whether voluntaryor involuntary) or in bankruptcy, insolvency, receivership or similarproceedings, all amounts due or to become due upon all Senior Indebtednessshall first be paid in full in cash, or other payments satisfactory to theholders of Senior Indebtedness before any payment is made on account of theprincipal of, premium, if any, interest or Additional Interest, if any, on theSecurities (except payments made pursuant to Article 10 from moniesdeposited with the Trustee pursuant thereto prior to commencement ofproceedings for such dissolution, winding-up, liquidation or reorganization);and upon any such dissolution or winding-up or liquidation or

 

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

 

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

 

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

 

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

 

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the holders of Senior Indebtedness or theirrepresentative or representatives, or to the trustee or trustees under anyindenture pursuant to which any instruments evidencing any Senior Indebtednessmay have been issued, as their respective interests may appear, as calculatedby the Company, for application to the payment of all Senior Indebtednessremaining unpaid to the extent necessary to pay all Senior Indebtedness infull, in cash or other payment satisfactory to the holders of SeniorIndebtedness, after giving effect to any concurrent payment or distribution toor for the holders of such Senior Indebtedness.

 

Nothing in thisSection 5.2 shall apply to claims of, or payments to, the Trustee under orpursuant to Section 9.7.  ThisSection 5.2 shall be subject to the further provisions ofSection 5.5.

 

**SECTION5.3. SUBROGATION OF SECURITIES.**

 

Subject to the payment infull, in cash or other payment satisfactory to the holders of SeniorIndebtedness, of all Senior Indebtedness, the rights of the Holders of theSecurities shall be subrogated to the extent of the payments or distributionsmade to the holders of such Senior Indebtedness pursuant to the provisions ofthis Article 5 (equally and ratably with the holders of all indebtednessof the Company which by its express terms is subordinated to other indebtednessof the Company to substantially the same extent as the Securities aresubordinated and is entitled to like rights of subrogation) to the rights ofthe holders of Senior Indebtedness to receive payments or distributions ofcash, property or securities of the Company applicable to the SeniorIndebtedness until the principal, premium, if any, interest and AdditionalInterest, if any, on the Securities shall be paid in full in cash or otherpayment satisfactory to the holders of Senior Indebtedness; and, for thepurposes of such subrogation, no payments or distributions to the holders ofthe Senior Indebtedness of any cash, property or securities to which theHolders of the Securities or the Trustee would be entitled except for theprovisions of this Article 5, and no payment over pursuant to theprovisions of this Article 5, to or for the benefit of the holders ofSenior Indebtedness by Holders of the Securities or the Trustee, shall, asbetween 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 toor on account of the Senior Indebtedness; and no payments or distributions ofcash, property or securities to or for the benefit of the Holders of theSecurities pursuant to the subrogation provisions of this Article 5, whichwould otherwise have been paid to the holders of Senior Indebtedness shall bedeemed 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 areintended solely for the purposes of defining the relative rights of the Holdersof the Securities, on the one hand, and the holders of the Senior Indebtedness,on the other hand.

 

Nothing contained in thisArticle 5 or elsewhere in this Indenture or in the Securities is intendedto or shall impair, as among the Company, its creditors other than the holdersof Senior Indebtedness, and the Holders of the Securities, the obligation ofthe Company, which is absolute and unconditional, to pay to the Holders of theSecurities the principal of (and premium, if any), interest and AdditionalInterest, if any, on the Securities as and when the same shall become due andpayable in accordance with their terms, or is intended to or shall affect therelative rights of the Holders of the Securities and creditors of the Companyother than the holders of the Senior Indebtedness, nor shall anything herein ortherein prevent the Trustee or the Holder of any Security from exercising allremedies otherwise permitted by applicable law upon default under this Indenture,subject to the rights, if any, under this Article 5 of the holders ofSenior Indebtedness in respect of cash, property or securities of the Companyreceived upon the exercise of any such remedy.

 

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Upon any payment or distribution of assets of the Company referred toin this Article 5, the Trustee, subject to the provisions ofSection 9.1, and the Holders of the Securities shall be entitled to relyupon any order or decree made by any court of competent jurisdiction in whichsuch bankruptcy, dissolution, winding-up, liquidation or reorganizationproceedings are pending, or a certificate of the receiver, trustee inbankruptcy, liquidating trustee, agent or other person making such payment ordistribution, delivered to the Trustee or to the Holders of the Securities, forthe purpose of ascertaining the persons entitled to participate in suchdistribution, the holders of the Senior Indebtedness and other indebtedness ofthe Company, the amount thereof or payable thereon and all other factspertinent thereto or to this Article 5.

 

**SECTION5.4. AUTHORIZATION TO EFFECT SUBORDINATION.**

 

Each Holder of aSecurity by the Holder’s acceptance thereof authorizes and directs the Trusteeon the Holder’s behalf to take such action as may be necessary or appropriateto effectuate the subordination as provided in this Article 5 and appointsthe Trustee to act as the Holder’s attorney-in-fact for any and all suchpurposes. If the Trustee does not file a proper proof of claim or proof of debtin the form required in any proceeding referred to in Section 5.3 hereofat least 30 days before the expiration of the time to file such claim, theholders of any Senior Indebtedness or their representatives are hereby authorizedto file an appropriate claim for and on behalf of the Holders of theSecurities.

 

**SECTION 5.5. NOTICE TO TRUSTEE.**

 

The Company shall giveprompt written notice in the form of an Officers’ Certificate to a TrustOfficer of the Trustee and to any Paying Agent of any fact known to the Companywhich would prohibit the making of any payment of monies to or by the Trusteeor any Paying Agent in respect of the Securities pursuant to the provisions ofthis Article 5.  Notwithstandingthe 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 factswhich would prohibit the making of any payment of monies to or by the Trusteein respect of the Securities pursuant to the provisions of this Article 5,unless and until a Trust Officer of the Trustee shall have received writtennotice thereof at the Corporate Trust Office from the Company (in the form ofan Officers’ Certificate) or a Representative or a Holder or Holders of SeniorIndebtedness or from any trustee thereof; and before the receipt of any suchwritten notice, the Trustee, subject to the provisions of Section 9.1,shall be entitled in all respects to assume that no such facts exist; providedthat if on a date not less than one Business Day prior to the date uponwhich by the terms hereof any such monies may become payable for any purpose(including, without limitation, the payment of the principal of, or premium, ifany, interest or Additional Interest, if any, on any Security) the Trusteeshall not have received, with respect to such monies, the notice provided forin this Section 5.5, then, anything herein contained to the contrarynotwithstanding, the Trustee shall have full power and authority to receivesuch 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 receivedby it on or after such prior date. Notwithstanding anything in thisArticle 5 to the contrary, nothing shall prevent any payment by theTrustee 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 tothe provisions of Section 9.1, shall be entitled to rely on the deliveryto it of a written notice by a Representative or a person representing himselfto 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 ofSenior Indebtedness or a trustee on behalf of any such holder or holders. In

 

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the event that the Trustee determines in good faiththat further evidence is required with respect to the right of any person as aholder of Senior Indebtedness to participate in any payment or distributionpursuant to this Article 5, the Trustee may request such Person to furnishevidence to the reasonable satisfaction of the Trustee as to the amount ofSenior Indebtedness held by such Person, the extent to which such Person isentitled to participate in such payment or distribution and any other factspertinent to the rights of such Person under this Article 5, and if suchevidence is not furnished the Trustee may defer any payment to such Personpending judicial determination as to the right of such Person to receive suchpayment.

 

**SECTION 5.6. TRUSTEE’S RELATION TOSENIOR INDEBTEDNESS.**

 

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

 

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

 

**SECTION5.7. NO IMPAIRMENT OF SUBORDINATION.**

 

No right of any presentor future holder of any Senior Indebtedness to enforce subordination as hereinprovided shall at any time in any way be prejudiced or impaired by any act orfailure to act on the part of the Company or by any act or failure to act, ingood faith, by any such holder, or by any noncompliance by the Company with theterms, provisions and covenants of this Indenture, regardless of any knowledgethereof which any such holder may have or otherwise be charged with.

 

**SECTION5.8. CERTAIN CONVERSIONS DEEMED PAYMENT.**

 

For the purposes of thisArticle 5 only, the issuance and delivery of junior securities uponconversion of Securities in accordance with Article 4 and thepayment, issuance or delivery of cash, property or other securities uponconversion of a Security shall not be deemed to constitute a payment ordistribution on account of the principal of such Security (or premium, if any)or interest. For the purposes of this Section 5.8, the term “**juniorsecurities**” means (a) shares of any stock of any class of theCompany, or (b) securities of the Company which are subordinated in rightof payment to all Senior Indebtedness which may be outstanding at the time ofissuance or delivery of such securities to substantially the same extent as, orto a greater extent than, the Securities are so subordinated as provided inthis Article. Nothing contained in this Article 5 or elsewhere in thisIndenture 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, theright, which is absolute and unconditional, of the Holder of any Security toconvert such Security in accordance with Article 4.

 

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**SECTION5.9. ARTICLE APPLICABLE TO PAYING AGENTS.**

 

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

 

**SECTION5.10. SENIOR INDEBTEDNESS ENTITLED TO RELY.**

 

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

 

# **ARTICLE6COVENANTS**

# ** **

**SECTION 6.1. PAYMENT OF SECURITIES.**

 

The Company shallpromptly make all payments in respect of the Securities on the dates and in themanner provided in the Securities and this Indenture.  An installment of principal, interest or Additional Interest, ifany, shall be considered paid on the date it is due if the Paying Agent (otherthan 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 inthe case of a redemption or Change in Control, accrued and unpaid interest orAdditional Interest, if any, on any Security that is payable, and is punctuallypaid or duly provided for, on any interest payment date shall be paid to thePerson in whose name that Security is registered at the close of business onthe record date for such interest or Additional Interest, if any, at the officeor agency of the Company maintained for such purpose.  The Company shall, (in immediately available funds) to thefullest extent permitted by law, pay interest on overdue principal (includingpremium, if any) and overdue installments of interest from the original duedate to the date paid, at the rate applicable to the Security plus 2% perannum, which interest shall be payable on demand.  Additional Interest, if any, shall accrue at the rates providedfor in the Registration Rights Agreement and shall be paid at the same time andin the same manner as regular interest.

 

Payment of the principalof (and premium, if any, interest and Additional Interest, if any, payable onthe Final Maturity Date) on the Securities shall be made at the office oragency 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 ofthe Trustee) in immediately available funds in such coin or currency of theUnited States of America as at the time of payment is legal tender for paymentof public and private debts.  Payment ofinterest or Additional Interest, if any, shall be made by check mailed to theaddress of the Person entitled thereto as such address appears in the Register;providedfurther that a Holder with an aggregate principal amountin excess of $2,000,000 will be paid by wire transfer in immediately availablefunds at the election of such Holder if such Holder has provided wire transferinstructions to the Company

 

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at least 10 Business Days prior to the paymentdate.  Any wire transfer instructionsreceived by the Trustee will remain in effect until revoked by the Holder.

 

**SECTION 6.2. SEC REPORTS.**

 

The Company shall fileall reports and other information and documents which it is required to filewith the SEC pursuant to Section 13 or 15(d) of the Exchange Act, andwithin 15 days after it files them with the SEC, the Company shall file copiesof 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 andthe Trustee’s receipt of such shall not constitute constructive notice of anyinformation contained therein or determinable from information containedtherein, 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 deliverto the Trustee, within 90 days after the end of each fiscal year of theCompany (beginning with the fiscal year ending October 31, 2004), anOfficers’ Certificate as to the signer’s knowledge of the Company’s compliancewith all conditions and covenants on its part contained in this Indenture andstating whether or not the signer knows of any default or Event ofDefault.  If such signer knows of such adefault or Event of Default, the Officers’ Certificate shall describe thedefault 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 orrequirement of notice provided pursuant to the terms of this Indenture.

 

**SECTION6.4. FURTHER INSTRUMENTS AND ACTS.**

 

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

 

**SECTION6.5. MAINTENANCE OF CORPORATE EXISTENCE.**

 

Subject toArticle 7, the Company will do or cause to be done all things necessary topreserve and keep in full force and effect its corporate existence.

 

**SECTION6.6. RULE 144A INFORMATION REQUIREMENT.**

 

Within the period priorto the expiration of the holding period applicable to sales of the Securitiesunder Rule 144(k) under the Securities Act (or any successor provision),the Company covenants and agrees that it shall, during any period in which itis not subject to Section 13 or 15(d) under the Exchange Act, upon therequest of any Holder or beneficial holder of the Securities make available tosuch Holder or beneficial holder of Securities or any Common Stock issued uponconversion thereof in connection with any sale thereof and any prospectivepurchaser of Securities or such Common Stock designated by such Holder orbeneficial holder, the information required pursuant to Rule 144A(d)(4)under the Securities Act and it will take such further action as any Holder orbeneficial holder of such Securities or

 

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such Common Stock may reasonably request, all to theextent required from time to time to enable such Holder or beneficial holder tosell its Securities or Common Stock without registration under the SecuritiesAct within the limitation of the exemption provided by Rule 144A, as suchRule may be amended from time to time. Upon the request of any Holder or any beneficial holder of theSecurities or such Common Stock, the Company will deliver to such Holder awritten statement as to whether it has complied with such requirements.

 

**SECTION 6.7. STAY, EXTENSION AND USURY LAWS.**

 

The Company covenants (tothe extent that it may lawfully do so) that it shall not at any time insistupon, plead, or in any manner whatsoever claim or take the benefit or advantageof, any stay, extension or usury law or other law which would prohibit orforgive the Company from paying all or any portion of the principal of,premium, if any, interest or Additional Interest, if any, on the Securities ascontemplated herein, wherever enacted, now or at any time hereafter in force,or which may affect the covenants or the performance of this Indenture, and theCompany (to the extent it may lawfully do so) hereby expressly waives allbenefit or advantage of any such law and covenants that it will not, by resortto any such law, hinder, delay or impede the execution of any power hereingranted to the Trustee, but will suffer and permit the execution of every suchpower as though no such law had been enacted.

 

**SECTION6.8. PAYMENT OF ADDITIONAL INTEREST.**

 

If Additional Interest ispayable by the Company pursuant to the Registration Rights Agreement, theCompany shall deliver to the Trustee a certificate to that effect stating(i) the amount of such Additional Interest that is payable, (ii) thereason why such Additional Interest is payable and (iii) the date on whichsuch Additional Interest is payable. Unless and until a Trust Officer of the Trustee receives such acertificate, the Trustee may assume without inquiry that no such AdditionalInterest is payable.

 

# **ARTICLE7CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE**

 

**SECTION 7.1. COMPANY MAY CONSOLIDATE, ETC. ONLY ONCERTAIN TERMS.**

 

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

 

#### (1)   in case the Company shall consolidate with ormerge into another Person (in a transaction in which the Company is not thesurviving Person) or sell, assign, convey, transfer, lease or otherwise disposeof all or substantially all of its properties and assets to any Person, thePerson formed by such consolidation or into which the Company is merged or thePerson which acquires by conveyance or transfer, or which leases, theproperties and assets of the Company substantially as an entirety shall be acorporation organized and validly existing under the laws of the United Statesof America, any State thereof or the District of Columbia and shall expresslyassume, by an indenture supplemental hereto, executed and delivered to theTrustee, in form satisfactory to the Trustee, the due and punctual payment ofthe principal of, (premium, if any), interest and Additional Interest, if any,on all the Securities and the performance or observance of every covenant ofthis Indenture on the part of the Company to be performed or observed (and theconversion rights shall be provided for in accordance with Article 4, by

####  

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

####  

#### (2)   immediately after giving effect to suchtransaction, no Event of Default, and no event which, after notice or lapse oftime or both, would become an Event of Default, shall have happened and becontinuing; and

####  

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

####  

**SECTION 7.2. SUCCESSOR SUBSTITUTED.**

 

Upon any consolidation ofthe Company with, or merger of the Company into, any other Person or anyconveyance, transfer or lease of all or substantially all of the properties andassets of the Company in accordance with Section 7.1, the successor Personformed by such consolidation or into which the Company is merged or to whichsuch conveyance, transfer or lease is made shall succeed to, and be substitutedfor, and may exercise every right and power of, the Company under thisIndenture with the same effect as if such successor Person had been named asthe Company herein, and thereafter, except in the case of a lease, thepredecessor Person shall be relieved of all obligations and covenants underthis Indenture and the Securities.

 

# **ARTICLE8DEFAULT AND REMEDIES**

# ** **

**SECTION 8.1. EVENTS OF DEFAULT.**

 

An “Event of Default”shall occur if:

 

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

####  

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

####  

#### (3)   the Company fails to comply with any of itsother covenants contained in the Securities or this Indenture and the defaultcontinues for the period and after the notice specified below;

####  

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

####  

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#### 

####  

#### (5)   the Company fails to provide a Change inControl 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 anySignificant Subsidiary or under any mortgage, indenture or instrument underwhich there may be issued or by which there may be secured or evidenced anyindebtedness 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 becreated, is not paid at final maturity of the Instrument (either at its statedmaturity or upon acceleration thereof), and such indebtedness is notdischarged, or such default in payment or acceleration is not cured orrescinded, 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 theCompany and the Trustee by the Holders of at least 25% in aggregate principalamount of the Outstanding Securities of a series a written notice specifyingsuch default and requiring the Company to cause such indebtedness to bedischarged or cause such default to be cured or waived or such acceleration tobe 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 caseor proceeding;

#####  

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

#####  

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

#####  

##### (D)       makes a general assignmentfor the benefit of its creditors; or

#####  

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

####  

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

#####  

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

#####  

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

#####  

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

#####  

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

 

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A default underclause (3) above is not an Event of Default until the Trustee notifies theCompany, or the Holders of at least 25% in aggregate principal amount of theSecurities of a series then outstanding notify the Company and the Trustee, inwriting of the default, and the Company does not cure the default within60 days after receipt of such notice. The notice given pursuant to thisSection 8.1 must specify the default, demand that it be remedied and statethat the notice is a “Notice of Default.” When any default under this Section 8.1 is cured, it ceases.

 

The Trustee shall not becharged with knowledge of any Event of Default unless written notice thereofshall have been given to a Trust Officer at the Corporate Trust Office of theTrustee 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) ofSection 8.1) occurs and is continuing, the Trustee may, by notice to theCompany, or the Holders of at least 25% in aggregate principal amount of theSecurities then outstanding of any series may, by notice to the Company and theTrustee, declare all unpaid principal to the date of acceleration on theSecurities then outstanding of such series (if not then due and payable) to bedue and payable upon any such declaration, and the same shall become and beimmediately due and payable.  If anEvent of Default specified in clause (7) or (8) of Section 8.1 occurswith respect to the Company, all unpaid principal of the Securities of eachseries then outstanding shall ipso facto become and be immediately due andpayable without any declaration or other act on the part of the Trustee or anyHolder.  The Holders of a majority inaggregate principal amount of the Securities then outstanding of any series bynotice to the Trustee may rescind an acceleration and its consequences withrespect to that series if (a) all existing Events of Default with respectto that series, other than the nonpayment of the principal of the Securitieswhich has become due solely by such declaration of acceleration, have beencured 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 otherwisepayable on such Security on overdue installments of interest and AdditionalInterest, if any, and overdue principal, which has become due otherwise than bysuch declaration of acceleration, has been paid; (c) the rescission wouldnot conflict with any judgment or decree of a court of competent jurisdiction;and (d) all payments due to the Trustee and any predecessor Trustee underSection 9.7 have been made.  Nosuch rescission shall affect any subsequent default or impair any rightconsequent thereto.

 

**SECTION 8.3. OTHER REMEDIES.**

 

If an Event of Defaultoccurs and is continuing with respect to any series, the Trustee may, but shallnot be obligated to, pursue any available remedy by proceeding at law or inequity to collect the payment of the principal of or interest or AdditionalInterest, if any, on the Securities of such series or to enforce theperformance of any provision of such Securities or this Indenture.

 

The Trustee may maintaina proceeding even if it does not possess any of the Securities or does notproduce any of them in the proceeding. A delay or omission by the Trustee or any Securityholder in exercisingany right or remedy accruing upon an Event of Default shall not impair theright or remedy or constitute a waiver of or acquiescence in the Event ofDefault.  No remedy is exclusive of anyother remedy.  All available remediesare cumulative to the extent permitted by law.

 

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**SECTION 8.4. WAIVER OF DEFAULTS ANDEVENTS OF DEFAULT.**

 

Subject toSections 8.7 and 11.2, the Holders of a majority in aggregate principalamount of the Securities then outstanding of a series by notice to the Trusteemay waive an existing default or Event of Default and its consequence withrespect to such series, except a default or Event of Default in the payment ofthe 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 Securitiesinto Common Stock or any default or Event of Default in respect of anyprovision of this Indenture or the Securities which, under Section 11.2,cannot be modified or amended without the consent of the Holder of eachSecurity affected.  When a default orEvent of Default is waived, it is cured and ceases.

 

**SECTION 8.5. CONTROL BY MAJORITY.**

 

The Holders of a majorityin principal amount of all Securities then outstanding of any series may directthe time, method and place of conducting any proceeding for exercising anyremedy or power available to the Trustee or exercising any trust or powerconferred on it with respect to such series. However, the Trustee may refuse to follow any direction that conflictswith law or this Indenture, that the Trustee determines may be undulyprejudicial to the rights of another Holder or the Trustee, or that may involvethe Trustee in personal liability unless the Trustee is offered indemnitysatisfactory to it; provided, however, that the Trustee may takeany other action deemed proper by the Trustee which is not inconsistent withsuch direction.

 

**SECTION 8.6. LIMITATIONS ON SUITS.**

 

A Holder may not pursueany remedy with respect to this Indenture or the Securities (except actions forpayment 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 writtennotice of a continuing Event of Default;

####  

#### (2)   the Holders of at least 25% in aggregateprincipal amount of the then outstanding Securities of the applicable seriesmake a written request to the Trustee to pursue the remedy;

####  

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

####  

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

####  

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

####  

A Securityholder may notuse this Indenture to prejudice the rights of another Securityholder or toobtain a preference or priority over such other Securityholder.

 

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**SECTION 8.7. RIGHTS OF HOLDERS TORECEIVE PAYMENT AND TO CONVERT.**

 

Notwithstanding any otherprovision of this Indenture, the right of any Holder of a Security to receivepayment of the principal of, interest and Additional Interest, if any, on theSecurity, on or after the respective due dates expressed in the Security andthis Indenture, to convert such Security in accordance with Article 4 andto bring suit for the enforcement of any such payment on or after such respectivedates or the right to convert, is absolute and unconditional and shall not beimpaired or affected without the consent of the Holder.

 

**SECTION8.8. COLLECTION SUIT BY TRUSTEE.**

 

If an Event of Default inthe payment of principal, interest or Additional Interest, if any, specified inclause (1) or (2) of Section 8.1 occurs and is continuing withrespect to any Securities, the Trustee may recover judgment in its own name andas trustee of an express trust against the Company or another obligor on theSecurities for the whole amount of principal and accrued interest or AdditionalInterest, if any, remaining unpaid, together with, to the extent that paymentof such interest is lawful, interest on overdue principal and overdueinstallments of interest or Additional Interest, if any, in each case at a rateequal to the interest rate then in effect on such Security plus 2% per annumand such further amount as shall be sufficient to cover the costs and expensesof collection, including the reasonable compensation, expenses, disbursementsand advances of the Trustee, its agents and counsel.

 

**SECTION 8.9. TRUSTEE MAY FILE PROOFSOF CLAIM.**

 

The Trustee may file suchproofs of claim and other papers or documents as may be necessary or advisablein order to have the claims of the Trustee (including any claim for thereasonable compensation, expenses, disbursements and advances of the Trustee,its agents and counsel) and the Holders allowed in any judicial proceedingsrelative to the Company (or any other obligor on the Securities), its creditorsor its property and shall be entitled and empowered to collect and receive anymoney or other property payable or deliverable on any such claims and todistribute the same, and any Custodian in any such judicial proceeding ishereby authorized by each Holder to make such payments to the Trustee and, inthe event that the Trustee shall consent to the making of such paymentsdirectly to the Holders, to pay to the Trustee any amount due to it for thereasonable compensation, expenses, disbursements and advances of the Trustee,its agents and counsel, and any other amounts due the Trustee underSection 9.7, and to the extent that such payment of the reasonablecompensation, expenses, disbursements and advances in any such proceedings shallbe 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 insuch proceedings, whether in liquidation or under any plan of reorganization orarrangement or otherwise.  Nothingherein contained shall be deemed to authorize the Trustee to authorize orconsent to, or, on behalf of any Holder, to authorize, accept or adopt any planof reorganization, arrangement, adjustment or composition affecting theSecurities or the rights of any Holder thereof, or to authorize the Trustee tovote in respect of the claim of any Holder in any such proceeding.

 

**SECTION 8.10. PRIORITIES.**

 

If the Trustee collectsany money pursuant to this Article 8, it shall pay out the money in thefollowing order:

 

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*First*, to the Trustee for amounts dueunder Section 9.7;

 

*Second*, to the holders of SeniorIndebtedness to the extent required by Article 5;

 

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

 

*Fourth*, the balance, if any, to theCompany.

 

The Trustee may fix arecord date and payment date for any payment to Holders pursuant to thisSection 8.10.

 

**SECTION 8.11. UNDERTAKING FOR COSTS.**

 

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

 

# **ARTICLE9TRUSTEE**

# ** **

**SECTION 9.1. DUTIES OF TRUSTEE.**

 

### (a)   If an Event of Default has occurred and iscontinuing, the Trustee shall exercise such of the rights and powers vested init by this Indenture and use the same degree of care and skill in its exerciseas a prudent person would exercise or use under the circumstances in theconduct of his or her own affairs.

###  

### (b)   Except during the continuance of an Event ofDefault:

###  

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

####  

#### (2)   in the absence of bad faith on its part, theTrustee may conclusively rely, as to the truth of the statements and thecorrectness of the opinions expressed therein, upon certificates or opinionsfurnished to the Trustee and conforming to the requirements of thisIndenture.  The Trustee, however, shallexamine any certificates and opinions which by any provision hereof arespecifically required to be delivered to the Trustee to determine whether ornot they conform to the requirements of this Indenture.

####  

### (c)   The Trustee may not be relieved fromliability for its own negligent action, its own negligent failure to act, orits own willful misconduct, except (subject to the Trust Indenture Act) that:

 

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

####  

#### (2)   the Trustee shall not be liable for any errorof judgment made in good faith by a Trust Officer, unless it is proved that theTrustee was negligent in ascertaining the pertinent facts; and

####  

#### (3)   the Trustee shall not be liable with respectto any action it takes or omits to take in good faith in accordance with adirection received by it pursuant to Section 8.5.

####  

### (d)   No provision of this Indenture shall requirethe Trustee to expend or risk its own funds or otherwise incur any financialliability in the performance of any of its duties hereunder or in the exerciseof any of its rights or powers unless the Trustee shall have received adequateindemnity in its opinion against potential costs and liabilities incurred by itrelating thereto.

###  

### (e)   Every provision of this Indenture that in anyway 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 intereston any money received by it except as the Trustee may agree in writing with theCompany.  Money held in trust by theTrustee need not be segregated from other funds except to the extent requiredby law.

###  

**SECTION 9.2. RIGHTS OF TRUSTEE.**

 

Subject toSection 9.1:

 

### (a)   The Trustee may rely conclusively on anydocument believed by it to be genuine and to have been signed or presented bythe proper person.  The Trustee need notinvestigate any fact or matter stated in the document.

###  

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

###  

### (c)   The Trustee may act through its agents andshall not be responsible for the misconduct or negligence of any agentappointed with due care.

###  

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

###  

### (e)   The Trustee may consult with counsel of itsselection, and the advice or opinion of such counsel as to matters of law shallbe full and complete authorization and protection in respect of any such actiontaken, omitted or suffered by it hereunder in good faith and in accordance withthe advice or opinion of such counsel.

###  

### (f)    The Trustee shall be under no obligation toexercise any of the rights or powers vested in it by this Indenture at therequest or direction of any of the Holders pursuant to this Indenture, unlesssuch Holders shall have offered to the Trustee security or indemnitysatisfactory to the Trustee against the costs, expenses and liabilities whichmight be incurred by it in compliance with such request or direction.

###  

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### (g)   The Trustee shall not be bound to make anyinvestigation 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 ordocument, but the Trustee, in its discretion, may make such further inquiry orinvestigation into such facts or matters as it may see fit, and, if the Trusteeshall determine to make such further inquiry or investigation, it shall beentitled to examine the books, records and premises of the Company, personallyor by agent or attorney at the sole cost of the Company and shall incur noliability or additional liability of any kind by reason of such inquiry orinvestigation.

###  

### (h)   The Trustee shall not be deemed to havenotice of any Default or Event of Default unless a Trust Officer of the Trusteehas actual knowledge thereof or unless written notice of any event which is infact 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, theTrustee in each of its capacities hereunder, and to each agent, custodian andother Person employed to act hereunder.

###  

**SECTION9.3. INDIVIDUAL RIGHTS OF TRUSTEE.**

 

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

 

**SECTION 9.4. TRUSTEE’S DISCLAIMER.**

 

The Trustee makes norepresentation as to the validity or adequacy of this Indenture or theSecurities, it shall not be accountable for the Company’s use of the proceedsfrom the Securities, and it shall not be responsible for any statement in theSecurities other than its certificate of authentication.

 

**SECTION 9.5. NOTICE OF DEFAULT OREVENTS OF DEFAULT.**

 

If a default or an Eventof Default occurs and is continuing and if it is known to the Trustee, theTrustee shall mail to each Securityholder of the affected series notice of thedefault or Event of Default within 90 days after it occurs.  However, the Trustee may withhold the noticeif and so long as a committee of its Trust Officers in good faith determinesthat 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 theprincipal of, interest or Additional Interest, if any, on any Security of suchseries.

 

**SECTION 9.6. REPORTS BY TRUSTEE TOHOLDERS.**

 

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

 

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A copy of each report atthe time of its mailing to Securityholders shall be mailed to the Company andfiled with the SEC and each stock exchange, if any, on which the Securities arelisted.  The Company shall notify theTrustee whenever the Securities become listed on any stock exchange or listedor admitted to trading on any quotation system and any changes in the stockexchanges or quotation systems on which the Securities are listed or admittedto trading and of any delisting thereof.

 

**SECTION9.7. COMPENSATION AND INDEMNITY.**

 

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

 

The Company shallindemnify the Trustee or any predecessor Trustee (which for purposes of thisSection 9.7 shall include its officers, directors, employees and agents)for, and hold it harmless against, any and all loss, liability or expenseincluding taxes (other than taxes based upon, measured by or determined by theincome of the Trustee), (including reasonable legal fees and expenses) incurredby it in connection with the acceptance or administration of its duties underthis Indenture or any action or failure to act as authorized or within thediscretion or rights or powers conferred upon the Trustee hereunder includingthe reasonable costs and expenses of the Trustee and its counsel in defendingitself against any claim or liability in connection with the exercise orperformance of any of its powers or duties hereunder.  The Trustee shall notify the Company promptly of any claimasserted against the Trustee for which it may seek indemnity.  The Company need not pay for any settlementeffected without its prior written consent, which shall not be unreasonablywithheld.

 

The Company need notreimburse the Trustee for any expense or indemnify it against any loss orliability incurred by it resulting from its gross negligence or bad faith.

 

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

 

When the Trustee incursexpenses or renders services after an Event of Default specified inclause (7) or (8) of Section 8.1 occurs, the expenses and thecompensation for the services are intended to constitute expenses ofadministration under any Bankruptcy Law to the extent permitted by law. Theprovisions of this Section shall survive the termination of thisIndenture.

 

**SECTION 9.8. REPLACEMENT OF TRUSTEE.**

 

The Trustee may resign byso notifying the Company.  The Holdersof a majority in aggregate principal amount of the Securities then outstandingmay remove the Trustee by so notifying the Trustee and may, with the Company’swritten consent, appoint a successor Trustee. The Company may remove the Trustee if:

 

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#### (1)   the Trustee fails to comply withSection 9.10;

####  

#### (2)   the Trustee is adjudged a bankrupt or aninsolvent;

####  

#### (3)   a receiver or other public officer takes chargeof the Trustee or its property; or

####  

#### (4)   the Trustee becomes incapable of acting.

####  

If the Trustee resigns oris removed or if a vacancy exists in the office of Trustee for any reason, theCompany shall promptly appoint a successor Trustee.  The resignation or removal of a Trustee shall not be effectiveuntil a successor Trustee shall have delivered the written acceptance of itsappointment as described below.

 

If a successor Trusteedoes not take office within 45 days after the retiring Trustee resigns oris removed, the retiring Trustee, the Company or the Holders of 10% inprincipal amount of the Securities then outstanding may petition any court ofcompetent jurisdiction for the appointment of a successor Trustee at theexpense of the Company.

 

If the Trustee fails tocomply with Section 9.10, any Holder may petition any court of competentjurisdiction for the removal of the Trustee and the appointment of a successorTrustee.

 

A successor Trustee shalldeliver a written acceptance of its appointment to the retiring Trustee and tothe Company.  Immediately after that,the retiring Trustee shall transfer all property held by it as Trustee to thesuccessor Trustee and be released from its obligations (exclusive of anyliabilities that the retiring Trustee may have incurred while acting asTrustee) hereunder, the resignation or removal of the retiring Trustee shallbecome effective, and the successor Trustee shall have all the rights, powersand duties of the Trustee under this Indenture.  A successor Trustee shall mail notice of its succession to eachHolder.

 

A retiring Trustee shallnot be liable for the acts or omissions of any successor Trustee after itssuccession.

 

Notwithstandingreplacement of the Trustee pursuant to this Section 9.8, the Company’sobligations under Section 9.7 shall continue for the benefit of theretiring Trustee.

 

**SECTION9.9. SUCCESSOR TRUSTEE BY MERGER, ETC.**

 

If the Trusteeconsolidates with, merges or converts into, or transfers all or substantiallyall of its corporate trust assets (including the administration of thisIndenture) to, another corporation, the resulting, surviving or transfereecorporation, without any further act, shall be the successor Trustee, providedsuch transferee corporation shall qualify and be eligible underSection 9.10.  Such successorTrustee shall promptly mail notice of its succession to the Company and eachHolder.

 

**SECTION9.10. ELIGIBILITY; DISQUALIFICATION.**

 

The Trustee shall alwayssatisfy the requirements of paragraphs (1), (2) and (5) of TIASection 310(a).  The Trustee (orits parent holding company) shall have a combined capital and surplus of atleast $50,000,000.  If at any time theTrustee shall cease to satisfy any such requirements, it shall resign

 

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

 

**SECTION9.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.**

 

The Trustee shall complywith TIA Section 311(a), excluding any creditor relationship listed in TIASection 311(b).  A Trustee who has resignedor been removed shall be subject to TIA Section 311(a) to the extentindicated therein.

 

# **ARTICLE 10SATISFACTION AND DISCHARGE OF INDENTURE**

# ** **

**SECTION10.1. SATISFACTION AND DISCHARGE OF INDENTURE.**

 

This Indenture shallcease to be of further effect (except as to any surviving rights of conversion,registration of transfer or exchange of Securities herein expressly providedfor and except as further provided below), and the Trustee, on demand of and atthe expense of the Company, shall execute proper instruments acknowledgingsatisfaction and discharge of this Indenture, when

 

#### (1)   either

####  

##### (A)  all Securities theretofore authenticated anddelivered (other than (i) Securities which have been destroyed, lost orstolen and which have been replaced or paid as provided in Section 2.7 and(ii) Securities for whose payment money has theretofore been deposited intrust 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 deliveredto the Trustee for cancellation have become due and payable and the Company hasirrevocably deposited or caused to be irrevocably deposited cash with theTrustee or a Paying Agent (other than the Company or any of its Affiliates) astrust funds in trust for the purpose of and in an amount sufficient to pay anddischarge the entire indebtedness on such Securities not theretofore deliveredto the Trustee for cancellation, for principal and interest (includingAdditional Interest, if any) to the date of such deposit (in the case ofSecurities which have become due and payable);

#####  

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

####  

#### (3)   the Company has delivered to the Trustee anOfficers’ Certificate and an Opinion of Counsel, each stating that allconditions precedent herein relating to the satisfaction and discharge of thisIndenture have been complied with.

####  

Notwithstanding thesatisfaction and discharge of this Indenture, the obligations of the Company tothe Trustee under Section 9.7 shall survive and, if money shall have beendeposited with the Trustee pursuant to subclause (B) of clause (1) ofthis 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 Section12.5, shall survive until the Securities have been paid in full.

 

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**SECTION10.2. APPLICATION OF TRUST MONEY.**

 

Subject to the provisionsof Section 10.3, the Trustee or a Paying Agent shall hold in trust, forthe benefit of the Holders, all money deposited with it pursuant toSection 10.1 and shall apply the deposited money in accordance with thisIndenture and the Securities to the payment of the principal of, interest andAdditional Interest, if any, on the Securities.  Money so held in trust shall not be subject to the subordinationprovisions of Article 5.

 

**SECTION 10.3. REPAYMENT TO COMPANY.**

 

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

 

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

 

**SECTION 10.4. REINSTATEMENT.**

 

If the Trustee or anyPaying Agent is unable to apply any money in accordance with Section 10.2by reason of any legal proceeding or by reason of any order or judgment of anycourt or governmental authority enjoining, restraining or otherwise prohibitingsuch application, then the Company’s obligations under this Indenture and theSecurities shall be revived and reinstated as though no deposit had occurredpursuant to Section 10.1 until such time as the Trustee or such PayingAgent is permitted to apply all such money in accordance withSection 10.2; provided, however, that if the Company hasmade any payment of the principal of or interest or Additional Interest, ifany, on any Securities because of the reinstatement of its obligations, theCompany shall be subrogated to the rights of the Holders of such Securities toreceive any such payment from the money held by the Trustee or such PayingAgent.

 

# **ARTICLE11AMENDMENTS, SUPPLEMENTS AND WAIVERS**

# ** **

**SECTION11.1. WITHOUT CONSENT OF HOLDERS.**

 

The Company and theTrustee may amend or supplement this Indenture or the Securities with respectto one or both series of Securities without notice to or consent of anySecurityholder:

 

### (a)   to comply with Sections 4.11 and 7.1;

###  

### (b)   to cure any ambiguity, defect orinconsistency;

###  

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### (c)   to make any other change that does notadversely affect the rights of any Securityholder;

###  

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

###  

### (e)   to add to the covenants of the Company forthe 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 OFHOLDERS.**

 

The Company and theTrustee may, with respect to any series of Securities, amend or supplement thisIndenture or the Securities with the written consent of the Holders of at leasta majority in aggregate principal amount of the Securities then outstanding ofeach series affected thereby.  TheHolders of at least a majority in aggregate principal amount of the Securitiesthen 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 orthe Securities of such series without notice to any Securityholder.  However, notwithstanding the foregoing butsubject to Section 11.4, without the written consent of eachSecurityholder 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 principalof any Security;

###  

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

###  

### (c)   change the place or currency of payment ofprincipal of, or any premium, interest or Additional Interest, if any, on, anySecurity;

###  

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

###  

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

###  

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

###  

### (g)   adversely affect the right of Holders toconvert Securities other than as provided in or under Article 4 of thisIndenture;

###  

### (h)   reduce the percentage of the aggregateprincipal amount of the outstanding Securities whose Holders must consent to amodification or amendment;

###  

### (i)    reduce the percentage of the aggregateprincipal amount of the outstanding Securities necessary for the waiver ofcompliance with the provisions of this Indenture or the waiver of defaultsunder this Indenture; and

 

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

###  

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

 

After an amendment,supplement or waiver under Section 11.1 or this Section 11.2 becomeseffective, the Company shall mail to the Holders affected thereby a noticebriefly describing the amendment, supplement or waiver.  Any failure of the Company to mail suchnotice, or any defect therein, shall not, however, in any way impair or affectthe validity of any such amendment, supplement or waiver. An amendment orsupplement under this Section 11.2 or under Section 11.1 may not makeany change that adversely affects the rights under Article 5 of any holderof an issue of Senior Indebtedness unless the holders of that issue, pursuantto its terms, consent to the change.

 

**SECTION11.3. COMPLIANCE WITH TRUST INDENTURE ACT.**

 

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

 

**SECTION 11.4. REVOCATION AND EFFECTOF CONSENTS.**

 

Until an amendment,supplement or waiver becomes effective, a consent to it by a Holder is acontinuing consent by the Holder and every subsequent Holder of a Security orportion of a Security that evidences the same debt as the consenting Holder’sSecurity, even if notation of the consent is not made on any Security.  However, any such Holder or subsequentHolder may revoke the consent as to its Security or portion of a Security ifthe 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 bindevery Securityholder of such series, unless it makes a change described in anyof clauses (a) through (k) of Section 11.2.  In that case the amendment, supplement or waiver shall bind eachHolder of a Security who has consented to it and every subsequent Holder of aSecurity or portion of a Security that evidences the same debt as theconsenting Holder’s Security.

 

**SECTION 11.5. NOTATION ON OR EXCHANGEOF SECURITIES.**

 

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

 

**SECTION11.6. TRUSTEE TO SIGN AMENDMENTS, ETC.**

 

The Trustee shall signany amendment or supplemental indenture authorized pursuant to thisArticle 11 if the amendment or supplemental indenture does not adverselyaffect the rights, duties,

 

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liabilities or immunitiesof the Trustee.  If it does, the Trusteemay, in its sole discretion, but need not sign it.  In signing or refusing to sign such amendment or supplementalindenture, the Trustee shall be entitled to receive and, subject toSection 9.1, shall be fully protected in relying upon, an Opinion ofCounsel stating that such amendment or supplemental indenture is authorized orpermitted by this Indenture.  TheCompany may not sign an amendment or supplement indenture until the Board ofDirectors approves it.

 

**SECTION11.7. EFFECT OF SUPPLEMENTAL INDENTURES.**

 

Upon the executionof any supplemental indenture under this Article, this Indenture shall bemodified in accordance therewith, and such supplemental indenture shall form apart of this Indenture for all purposes; and every Holder of Securitiestheretofore or thereafter authenticated and delivered hereunder shall be boundthereby.

 

# **ARTICLE12MISCELLANEOUS**

# ** **

**SECTION12.1. TRUST INDENTURE ACT CONTROLS.**

 

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

 

**SECTION 12.2. NOTICES.**

 

Any demand, authorizationnotice, request, consent or communication shall be given in writing anddelivered in person or mailed by first-class mail, postage prepaid, addressedas follows or transmitted by facsimile transmission (confirmed by delivery inperson or mail by first-class mail, postage prepaid, or by guaranteed overnightcourier) to the following facsimile numbers:

 

If to the Company, to:

 

ADC Telecommunications,Inc. 13625 Technology DriveEden Prairie, Minnesota 55440Attention:  General CounselFacsimile No.: 652-917-1717

 

if tothe Trustee, to:180 East Fifth Street

St.Paul, MN  55101

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

FacsimileNo.: 651-244-0711

 

Such notices orcommunications shall be effective when received.

 

The Company or theTrustee by notice to the other may designate additional or different addressesfor subsequent notices or communications.

 

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

 

Failure to mail a noticeor communication to a Securityholder or any defect in it shall not affect itssufficiency with respect to other Securityholders.  If a notice or communication to a Securityholder is mailed in themanner provided above, it is duly given, whether or not the addressee receivesit.

 

**SECTION12.3. COMMUNICATIONS BY HOLDERS WITH OTHER HOLDERS.**

 

Securityholders maycommunicate pursuant to TIA Section 312(b) with other Securityholders withrespect to their rights under this Indenture or the Securities.  The Company, the Trustee, the Registrar andany other person shall have the protection of TIA Section 312(c).

 

**SECTION12.4. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.**

 

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

###  

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

####  

#### (2)   an Opinion of Counsel stating that, in theopinion of such counsel, all such conditions precedent (including anycovenants, compliance with which constitutes a condition precedent) have beencomplied with.

####  

### (b)   Each Officers’ Certificate and Opinion ofCounsel with respect to compliance with a condition or covenant provided for inthis Indenture shall include:

###  

#### (1)   a statement that the person making suchcertificate or opinion has read such covenant or condition;

####  

#### (2)   a brief statement as to the nature and scopeof the examination or investigation upon which the statements or opinionscontained in such certificate or opinion are based;

####  

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

####  

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

####  

providedhowever, that with respect to matters of fact an Opinion of Counsel mayrely on an Officers’ Certificate or certificates of public officials.

 

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**SECTION 12.5. RECORD DATE FOR VOTE ORCONSENT OF SECURITYHOLDERS.**

 

The Company (or, in theevent deposits have been made pursuant to Section 10.1, the Trustee) mayset a record date for purposes of determining the identity of Holders entitledto vote or consent to any action by vote or consent authorized or permittedunder this Indenture, which record date shall not be more than thirty (30) daysprior to the date of the commencement of solicitation of such action.  Notwithstanding the provisions ofSection 11.4, if a record date is fixed, those persons who were Holders ofSecurities at the close of business on such record date (or their dulydesignated proxies), and only those persons, shall be entitled to take suchaction 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 makereasonable rules (not inconsistent with the terms of this Indenture) for actionby or at a meeting of Holders.  AnyRegistrar, Paying Agent or Conversion Agent may make reasonable rules for itsfunctions.

 

**SECTION 12.7. LEGAL HOLIDAYS.**

 

A “Legal Holiday” is aSaturday, Sunday or a day on which state or federally chartered bankinginstitutions in New York, New York and the state in which the Corporate TrustOffice is located are not required to be open (and, in the case of the FloatingRate Notes, commercial banks in London, England, are not open for business,including dealings in U.S dollars).  Ifa payment date is a Legal Holiday, payment shall be made on the next succeedingday that is not a Legal Holiday, and no interest or Additional Interest, ifany, shall accrue for the intervening period on such payment.  If an interest record date is a LegalHoliday, the record date shall not be affected.

 

**SECTION 12.8. GOVERNING LAW;SUBMISSION TO JURISDICTION.**

 

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

 

(b) The Companyirrevocably submits to the non-exclusive jurisdiction of any New York State orUnited 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 thefullest extent permitted by law, any objection which it may now or hereafterhave to the laying of venue of any such suit, action or proceeding brought insuch a court and any claim that any such suit, action or proceeding brought insuch a court has been brought in an inconvenient forum.

 

**SECTION12.9. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.**

 

This Indenture may not beused to interpret another indenture, loan or debt agreement of the Company or aSubsidiary of the Company.  Any suchindenture, loan or debt agreement may not be used to interpret this Indenture.

 

60

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**SECTION12.10. NO RECOURSE AGAINST OTHERS.**

 

All liability describedin paragraph 15 of the Securities of any director, officer, employee orstockholder, as such, of the Company is waived and released.

 

**SECTION 12.11. SUCCESSORS.**

 

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

 

**SECTION 12.12. MULTIPLE COUNTERPARTS.**

 

The parties may signmultiple counterparts of this Indenture. Each signed counterpart shall be deemed an original, but all of themtogether represent the same agreement.

 

**SECTION 12.13. SEPARABILITY.**

 

In case any provisions inthis Indenture or in the Securities shall be invalid, illegal or unenforceable,the validity, legality and enforceability of the remaining provisions shall notin 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 thisIndenture have been inserted for convenience of reference only, are not to beconsidered a part hereof, and shall in no way modify or restrict any of theterms or provisions hereof.

 

**SECTION12.15. CALCULATIONS IN RESPECT OF THE SECURITIES.**

 

The Company and itsagents shall make all calculations under the Indenture and the Securities ingood faith.  In the absence of manifesterror, such calculations shall be final and binding on all Holders.  The Company shall provide a copy of suchcalculations to the Trustee as required hereunder.

 

[SIGNATURE PAGE FOLLOWS]

 

61

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IN WITNESS WHEREOF, theparties hereto have hereunto set their hands as of the date and year firstabove 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

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**EXHIBIT A-1[FORM OF FACE OF SECURITY]**

** **

[UNLESS THIS CERTIFICATEIS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TOTHE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, ANDANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR INSUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THEDEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO.OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THEDEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUEOR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,CEDE & CO., HAS AN INTEREST HEREIN. THIS SECURITY IS A GLOBAL SECURITYWITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTEREDIN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF.  THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THENAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITEDCIRCUMSTANCES DESCRIBED IN THE INDENTURE AND, UNLESS AND UNTIL IT IS EXCHANGEDIN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BETRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARYOR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THEDEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARYOR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.](1)

 

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

 

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

 

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

 

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

 

A-1-1

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

 

[THE HOLDER OF THISSECURITY IS ENTITLED TO THE BENEFITS OF A REGISTRATION RIGHTS AGREEMENT (ASSUCH 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 THEPROVISIONS OF SUCH REGISTRATION RIGHTS AGREEMENT.](2)

 

A-1-2

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**ADCTELECOMMUNICATIONS, INC.**

** **

| CUSIP:  000886AC5 |   | R-1 |
|------------------------|--------|-----|

 

1% CONVERTIBLESUBORDINATED NOTES DUE JUNE 15, 2008

 

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

 

Interest PaymentDates:  June 15 and December 15,beginning December 15, 2003.

 

Record Dates:       June 1 and December 1

 

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

 

SIGNATURE PAGE FOLLOWS

 

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

 

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

 
|    |   |   | **ADC Telecommunications, Inc.** |
|---------|--------|--------|----------------------------------|
|    |   |   |                             |
|    |   |   |                             |
|    |   |   | By:                              |   |
|    |   |   |                             | Name: |
|    |   |   |                             | Title: |
|    |   |   |                             |
| Attest: |   |   |                             |
|    |   |   |                             |
|    |   |   |                             |
|    |   |   |
| Name:   |   |   |                             |
| Title:  |   |   |                             |
|    |   |   |                             |
| Dated:  |   |   |                             |

 

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Trustee’s Certificate ofAuthentication:  This is one of theSecurities referred to in the within-mentioned Indenture.

 
| **U.S. Bank National Association,** |   |   |
|-------------------------------------|--------|--------|
| as Trustee                          |   |   |
|                                |   |   |
|                                |   |   |
|                                |   |   |
| Authorized Signatory                |   |   |
|                                |   |   |
| By:                                 |   |   |

 

A-1-5

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**[FORMOF REVERSE SIDE OF SECURITY]ADC TELECOMMUNICATIONS, INC. 1% CONVERTIBLE SUBORDINATED NOTES DUE JUNE 15, 2008**

** **

1.     INTEREST

 

The Company shall payinterest on this Note semiannually in arrears on June 15 and December 15, eachan “interest payment date”, of each year, commencing on December 15, 2003, atthe rate per annum specified in the title of this Note.  Interest shall accrue from and includingJune 4, 2003 or the most recent interest payment date to which interest hadbeen paid or duly provided for to but excluding the date on which such interestis paid.  Interest on this Note will becomputed on the basis of a 360-day year of twelve 30-day months.

 

The Company shall, (inimmediately available funds) to the fullest extent permitted by law, payinterest on overdue principal (including premium, if any) and overdueinstallments of interest from the original due date to the date paid, at therate applicable to this Note plus 2% per annum, which interest shall be payableon demand.

 

Allreferences in the Indenture and this Note to interest shall be deemed toinclude a reference to additional interest payable pursuant to the RegistrationRights Agreement dated as of June 4, 2003 with respect to this Note.  If additional interest is payable on thisNote as contemplated under the Registration Rights Agreement, it shall bepayable on each interest payment date and at maturity to the record holderentitled to interest on such date.

 

Theinterest so payable and punctually paid or duly provided for on any interestpayment date will be paid to the Person in whose name this Note (or one or morePredecessor Securities) is registered at the close of business on the June 1 orDecember 1 preceding such interest payment date (the “Record Date”) except asprovided in the Indenture.  Payment ofthe principal of (and premium, if any) and interest on this Note will be madein such coin or currency of the United States of America as at the time ofpayment is legal tender for payment of public and private debts and asotherwise provided in the Indenture.

 

2.     METHOD OFPAYMENT

 

The Holder must surrender this Note to a Paying Agentto collect payment of principal at maturity. The Company will make any payments of interest at maturity to the personto whom the principal is paid.  Onpresentation and surrender of the certificated Note, the Company will payprincipal and interest in money of the United States that at the time ofpayment is legal tender for payment of public and private debts.  The Company will make any payments ofinterest on any interest payment date other than the date of maturity by checkmailed to the address of the record date registered holder as it appears in thesecurity register; provided, however, that a Holder with anaggregate principal amount in excess of $2,000,000 will be paid by wiretransfer in immediately available funds at the election of such Holder if suchHolder has provided wire transfer instructions in writing to the Trustee notless than 10 Business Days prior to the interest payment date.  Any wire transfer instructions received by the trustee will remain ineffect until revoked by the registered holder. Notwithstanding the foregoing, so long as

 

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

 

3.     PAYINGAGENT, REGISTRAR AND CONVERSION AGENT

 

Initially, U.S. BankNational Association (the “Trustee”, which term shall include any successortrustee under the Indenture hereinafter referred to) will act as Paying Agent,Registrar and Conversion Agent.  TheCompany may change any Paying Agent, Registrar or Conversion Agent without noticeto the Holder.  The Company or any ofits Subsidiaries may, subject to certain limitations set forth in theIndenture, act as Paying Agent or Registrar.

 

4.     INDENTURE,LIMITATIONS

 

This Note is one of aduly authorized issue of Securities of the Company designated as its 1%Convertible Subordinated Notes Due June 15, 2008 (the “Notes”), issuedunder an Indenture dated as of June 4, 2003 (together with any supplementalindentures thereto, the “Indenture”), between the Company and the Trustee.  The terms of this Note include those statedin the Indenture and those required by or made part of the Indenture byreference to the Trust Indenture Act of 1939, as amended, as in effect on thedate of the Indenture.  This Note issubject to all such terms, and the Holder of this Note is referred to the Indentureand said Act for a statement of them. Capitalized terms used and not definedherein have the meanings assigned to such terms in the Indenture.

 

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

 

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

 

At the option of theHolder and subject to the terms and conditions of the Indenture, the Companyshall become obligated to purchase all or any part specified by the Holder (solong 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 is30 Business Days after the occurrence of a Change in Control, at apurchase price equal to 100% of the principal amount thereof together withaccrued interest and Additional Interest, if any, up to, but excluding, theChange in Control Purchase Date.  TheHolder 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 theBusiness Day next preceding the Change in Control Purchase Date by delivering awritten notice of withdrawal to the Paying Agent in accordance with the termsof the Indenture.

 

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

 

6.     CONVERSION

 

A Holder of a Note mayconvert 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 ofCommon Stock at any time prior to the close of business on the Final MaturityDate; provided, however, that if the Note is subject to purchaseupon a Change in Control, the conversion right will terminate at the close ofbusiness on the 

 

A-1-7

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

 

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

 

To convert a Note, aHolder must (a) complete and manually sign the conversion notice set forthbelow and deliver such notice to a Conversion Agent, (b) surrender theNote to a Conversion Agent, (c) furnish appropriate endorsements andtransfer 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 (inwhole or in part) during the period from the close of business on any regularrecord date to the opening of business on the next succeeding interest paymentdate, if any, shall also be accompanied by payment in funds acceptable to theCompany of an amount equal to the interest payable on such interest paymentdate on the principal amount of such Note then being converted, and suchinterest shall be payable to such registered Holder notwithstanding theconversion of such Note, subject to the provisions of this Indenture relatingto the payment of defaulted interest, if any, by the Company in each case tothe extent provided in the Indenture, including Section 4.2 thereof.  If the Company defaults in the payment ofinterest payable on such interest payment date, if any, the Company shallpromptly repay such funds to such Holder. A Holder may convert a portion of a Note equal to $1,000 or any integralmultiple thereof.

 

A Note in respect ofwhich a Holder had delivered a Change in Control Purchase Notice exercising theoption of such Holder to require the Company to purchase such Note may be convertedonly if the Change in Control Purchase Notice is withdrawn in accordance withthe terms of the Indenture.

 

7.     SUBORDINATION

 

The indebtednessevidenced by the Notes is, to the extent and in the manner provided in theIndenture, subordinate and junior in right of payment to the prior payment infull of all Senior Indebtedness of the Company (including any interest accruingsubsequent to the commencement of any bankruptcy or similar proceeding, whetheror not a claim for post-petition interest is allowed as a claim in any suchproceeding).  Any Holder by acceptingthis Note agrees to and shall be bound by such subordination provisions andauthorizes the Trustee to give them effect. In addition to all other rights ofSenior Indebtedness described in the Indenture, the Senior Indebtedness shallcontinue to be Senior Indebtedness and entitled to the benefits of thesubordination provisions irrespective of any amendment, modification or waiverof any terms of any instrument relating to the Senior Indebtedness or anyextension or renewal of the Senior Indebtedness.

 

8.     DENOMINATIONS,TRANSFER, EXCHANGE, CANCELLATION

 

The Notes are inregistered form, without coupons, in denominations of $1,000 and integralmultiples of $1,000.  A Holder mayregister the transfer of or exchange Notes in accordance with theIndenture.  The Registrar may require aHolder, among other things, to furnish appropriate endorsements

 

A-1-8

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and transfer documentsand to pay any taxes or other governmental charges that may be imposed inrelation thereto by law or permitted by the Indenture.

 

All Notes surrendered forpayment, registration of transfer or exchange or conversion will, ifsurrendered to the Company or any of its other Agents with respect to theNotes, be delivered to the Trustee.  TheTrustee will promptly cancel all Notes delivered to it.  No Notes will be authenticated in exchangefor any Notes cancelled as provided in the Indenture.

 

9.     PERSONSDEEMED OWNERS

 

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

 

10.   UNCLAIMEDMONEY

 

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

 

11.   AMENDMENT,SUPPLEMENT AND WAIVER

 

Subject to certainexceptions, the Indenture or the Notes may be amended or supplemented with theconsent of the Holders of at least a majority in aggregate principal amount ofthe Notes then outstanding, and an existing default or Event of Default and itsconsequence or compliance with any provision of the Indenture or the Notes maybe waived in a particular instance with the consent of the Holders of amajority in aggregate principal amount of the Notes then outstanding.  Without the consent of or notice to anyHolder, the Company and the Trustee may amend or supplement the Indenture orthe Notes to, among other things, cure any ambiguity, defect or inconsistencyor make any other change that does not adversely affect the rights of anyHolder.

 

12.   SUCCESSOR ENTITY

 

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

 

13.   DEFAULTSAND REMEDIES

 

Under the Indenture, anEvent of Default includes: (i) default for 30 days in payment of interest  or Additional Interest, if any, on anyNotes; (ii) default in payment of any principal (including, withoutlimitation, any premium) on the Notes when due; (iii) failure by theCompany for 60 days after notice to it to comply with any of its othercovenants contained in the Indenture or the Notes; (iv) default in the paymentof certain indebtedness of the Company or a Significant Subsidiary;(v) certain events of bankruptcy, insolvency or reorganization of theCompany or any Significant Subsidiary and (vi) certain other eventsdescribed in the Indenture.  If an Eventof Default (other than as a result of certain events of bankruptcy, insolvencyor reorganization of the Company) occurs and is continuing, the Trustee or theHolders of at least 25% in aggregate principal amount of the Notes thenoutstanding may declare all unpaid principal to the date of acceleration on theNotes then outstanding to be due and payable immediately, all as and to theextent provided in the Indenture.  If anEvent of Default occurs as a result

 

A-1-9

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

 

14.   TRUSTEEDEALINGS WITH THE COMPANY

 

U.S. Bank NationalAssociation, the Trustee under the Indenture, in its individual or any othercapacity, may make loans to, accept deposits from and perform services for theCompany or an Affiliate of the Company, and may otherwise deal with the Companyor an Affiliate of the Company, as if it were not the Trustee.

 

15.   NO RECOURSEAGAINST OTHERS

 

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

 

16.   AUTHENTICATION

 

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

 

17.   ABBREVIATIONSAND DEFINITIONS

 

Customary abbreviationsmay 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 (= jointtenants with right of survivorship and not as tenants in common), CUST (=Custodian) and UGMA (= Uniform Gifts to Minors Act).

 

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

 

18.   INDENTURETO CONTROL; GOVERNING LAW

 

In the case of anyconflict between the provisions of this Note and the Indenture, the provisionsof the Indenture shall control.  ThisNote shall be governed by, and construed in accordance with, the laws of theState of New York, without regard to principles of conflicts of law.

 

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

 

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**ASSIGNMENTFORM**

** **

To assign this Note, fillin the form below:

 

I or we assign andtransfer this Note to

 

 

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

 

 

 

 

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

 

and irrevocably appoint

 

 

agent to transfer thisNote on the books of the Company.  Theagent 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:                        |   |                                       |   |
|                            |        |                                            |  |  |  |

 

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

 

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**CONVERSIONNOTICE**

 

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

 

To convert only part ofthis Note, state the principal amount to be converted (must be $1,000 or aintegral multiple of $1,000): $            .

 

If you want the stockcertificate 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’sname, address and zip code)

 

 
|                       |   | Your Signature:                            |
|----------------------------|--------|--------------------------------------------|
|                       |   |                                       |
| Date:                      |   |                                       |   |
|                       |   | (Sign exactly as  your name appears on the |
|                       |   | other side of  this Note)                  |
|                       |   |                                       |
| *Signature guaranteed  by: |   |
|                       |   |                                       |
| By:                        |   |                                       |   |
|                            |        |                                            |  |  |  |

 

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

 

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**OPTIONTO ELECT REPURCHASE**

**UPONA CHANGE IN CONTROL**

** **

To:          ADC Telecommunications, Inc.

 

The undersignedregistered owner of this Security hereby irrevocably acknowledges receipt of anotice from ADC Telecommunications, Inc. (the “Company”) as to the occurrenceof a Change in Control with respect to the Company and requests and instructsthe Company to purchase the entire principal amount of this Security, or theportion thereof (which is $1,000 or an integral multiple thereof) belowdesignated, in accordance with the terms of the Indenture referred to in thisSecurity at the Change in Control Purchase Price, together with accruedinterest, if any, to, but excluding, such date, to the registered Holderhereof.

 
| 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 mustcorrespond to the Name as written upon the face of this Security in everyparticular, without alteration or any change whatsoever.

 

A-1-14

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**SCHEDULEOF 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** |       |
|------------------------------------------------------------------------------------------------------|--------|-----------------------------------------------------|------------|------------------------------------------------------------------|------------|-------------------------------------------------------------------|------------|
|                                                                                                 |   |                                                | ** ** |                                                             | ** ** |                                                              | ** ** |
|                                                                                                 |   |                                                |       |                                                             |       |                                                              |       |
|                                                                                                 |   |                                                |       |                                                             |       |                                                              |       |

** **

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

** **

A-1-15

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**CERTIFICATETO BE DELIVERED UPON EXCHANGE OR REGISTRATIONOF TRANSFER OF RESTRICTED SECURITIES(4)**

** **

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

 

This certificate relatesto $        principal amount of Notesowned in (check applicable box)

 

o   book-entry or    o   definitive form by                       (the“Transferor”).

 

The Transferor hasrequested a Registrar or the Trustee to exchange or register the transfer ofsuch Notes.

 

In connection with suchrequest and in respect of each such Note, the Transferor does hereby certifythat the Transferor is familiar with transfer restrictions relating to theNotes 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 accordancewith any applicable securities laws of any state and is being made pursuant toan effective registration statement under the Securities Act of 1933, asamended (the “Securities Act”) (check applicable box) or the transfer orexchange, as the case may be, of such Note does not require registration underthe Securities Act because (check applicable box):

 

o                                    Such Note is beingtransferred pursuant to an effective registration statement under theSecurities Act.

 

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

 

o                                    Such Note is beingtransferred to the Company.

 

o                                    Such Note is beingtransferred to a person the Transferor reasonably believes is a “qualifiedinstitutional buyer” (as defined in Rule 144A or any successor provisionthereto (“Rule 144A”) under the Securities Act) that is purchasing for itsown account or for the account of a “qualified institutional buyer”, in eachcase to whom notice has been given that the transfer is being made in relianceon such Rule 144A, and in each case in reliance on Rule 144A.

 

o                                    Such Note is beingtransferred pursuant to and in compliance with an exemption from theregistration requirements under the Securities Act in accordance withRule 144 (or any successor thereto) (“Rule 144”) under the SecuritiesAct.

 

o                                    Such Note is beingtransferred to a non-U.S. Person in an offshore transaction in compliance withRule 904 of Regulation S under the Securities Act (or any successorthereto).

 

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

 

A-1-16

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

 

 
| Date:  |   |   |                         |
|--------|--------|--------|------------------------------|
|   |   |   | (Insert Name of  Transferor) |
|   |   |   |                         |

 

A-1-17

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**EXHIBIT A-2[FORM OF FACE OF SECURITY]**

** **

[UNLESS THIS CERTIFICATEIS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TOTHE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, ANDANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR INSUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THEDEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO.OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THEDEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUEOR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,CEDE & CO., HAS AN INTEREST HEREIN. THIS SECURITY IS A GLOBAL SECURITYWITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTEREDIN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF.  THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THENAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITEDCIRCUMSTANCES DESCRIBED IN THE INDENTURE AND, UNLESS AND UNTIL IT IS EXCHANGEDIN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BETRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARYOR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THEDEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARYOR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.](4)

 

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

 

THEHOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) THISSECURITY AND THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION THEREOF MAY BEOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) IN THE UNITEDSTATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIEDINSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN ATRANSACTION MEETING THE REQUIREMENTS

 

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

 

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

 

A-2-1

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

 

[THE HOLDER OF THISSECURITY IS ENTITLED TO THE BENEFITS OF A REGISTRATION RIGHTS AGREEMENT (ASSUCH 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 THEPROVISIONS OF SUCH REGISTRATION RIGHTS AGREEMENT.](2)

 

A-2-2

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**ADCTELECOMMUNICATIONS, INC.**

** **

| CUSIP:  000886AA9 |   | R-1 |
|------------------------|--------|-----|

 

FLOATING RATE CONVERTIBLESUBORDINATED NOTES DUE JUNE 15, 2013

 

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

 

Interest PaymentDates:  June 15 and December 15,beginning December 15, 2003.

 

RecordDates:  June 1 and December 1

 

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

 

SIGNATURE PAGE FOLLOWS

 

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

 

A-2-3

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

 
|    | **ADC Telecommunications, Inc.** |
|---------|----------------------------------|
|    |                             |
|    |                             |   |
|    | By:                              |   |
|    |                             | Name: |
|    |                             | Title: |
|    |                             |   |
| Attest: |                             |   |
|    |                             |   |
|    |                             |   |
|    |                             |   |
| Name:   |                             |   |
| Title:  |                             |   |
|    |                             |   |
| Dated:  |                             |   |

 

A-2-4

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Trustee’s Certificate ofAuthentication:  This is one of theSecurities referred to in the within-mentioned Indenture.

 

**U.S. Bank National Association,**

as Trustee

 
|                 |   |   |
|----------------------|--------|--------|
|                 |   |   |
| Authorized Signatory |   |   |
|                 |   |   |
| By:                  |   |   |

 

A-2-5

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[FORM OF REVERSE SIDE OF SECURITY]ADC TELECOMMUNICATIONS, INC. FLOATING RATE CONVERTIBLE SUBORDINATED NOTES DUE JUNE 15, 2013

 

1.     INTEREST

 

The Company shall payinterest on this Note semiannually in arrears at the rate specified below onJune 15 and December 15, each an interest payment date, commencing on December15, 2003.  Interest shall accrue fromand including June 4, 2003 or the most recent interest date to which interesthas been paid or duly provided for. Interest on this Note will be computed on the basis of a 360-day yearusing the actual number of days elapsed from and including an interest paymentdate to but excluding the next succeeding interest payment date.

 

The Company shall, (inimmediately available funds) to the fullest extent permitted by law, payinterest on overdue principal (including premium, if any) and overdueinstallments of interest from the original due date to the date paid, at therate applicable to this Note plus 2% per annum, which interest shall be payableon demand.

 

All references in theIndenture and this Note to interest shall be deemed to include a reference toadditional interest if payable pursuant to the Registration Rights Agreementdated as of June 4, 2003 with respect to the Notes.  If additional interest is payable on this Note as contemplatedunder the Registration Rights Agreement, it shall be payable on each interestpayment date and at maturity to the record holder entitled to interest on suchdate.

 

Theinterest so payable and punctually paid or duly provided for on any interestpayment date will be paid to the Person in whose name this Note (or one or morePredecessor Securities) is registered at the close of business on the June 1 orDecember 1 preceding such interest payment date (the “Record Date”) except asprovided in the Indenture.  Payment ofthe principal of (and premium, if any) and interest on this Note will be madein such coin or currency of the United States of America as at the time ofpayment is legal tender for payment of public and private debts and asotherwise provided in the Indenture.

 

The interest rate on thisNote for the period from June 4, 2003 to December 15, 2003 will be1.5625%.  The Calculation Agent willreset the interest rate on each interest payment date, each an “interest resetdate,” commencing December 15, 2003. The second London business day preceding an interest reset date will bethe “LIBOR determination date” for that interest reset date.  To reset the interest rate, the CalculationAgent will determine 6-month LIBOR on the LIBOR determination date and then add0.375% to it.  The interest rate ineffect on each day that is not an interest reset date will be the interest ratedetermined as of the LIBOR determination date pertaining to the immediatelypreceding interest reset date.  Theinterest rate in effect on any day that is an interest reset date will be theinterest rate determined as of the interest determination date pertaining tothat interest reset date.

 

“6-month LIBOR” means:

 

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

 

A-2-6

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b)             if no rate appears on the particular LIBORdetermination date on the Moneyline Telerate Page 3750, the rate calculated bythe calculation agent as the arithmetic mean (rounded, if necessary, to thenearest one thousandth of a percentage point, with five one-ten thousandths ofa percentage point rounded upwards) of at least two offered quotations obtainedby the calculation agent after requesting the principal London offices of eachof four major reference banks in the London interbank market to provide thecalculation agent with its offered quotation for deposits in United Statesdollars for the period of six months, commencing on the related interestpayment date, to prime banks in the London interbank market at approximately11:00 a.m., London time, on that LIBOR determination date and in a principalamount that is representative for a single transaction in United States dollarsin that market at that time; or

 

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

 

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

 

‘‘Moneyline Telerate Page3750’’ means the display on Moneyline Telerate (or any successor service) onsuch page (or any other page as may replace such page on such service) for thepurpose of displaying the London interbank rates of major banks for UnitedStates dollars.

 

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

 

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

 

2.     METHOD OFPAYMENT

 

The Holder must surrender this Note to a Paying Agentto collect payment of principal at maturity. The Company will make any payments of interest at maturity to the personto whom the principal is paid.  Onpresentation and surrender of the certificated Note, the Company will payprincipal and interest in money of the United States that at the time ofpayment is legal tender for payment of public and private debts.  The Company will make any payments ofinterest on any interest payment date other than the date of maturity by checkmailed to the address of the record date registered holder as it appears in thesecurity register; provided, however, that a Holder with anaggregate principal amount in excess of $2,000,000 will be paid by wiretransfer in immediately available funds at the election of such Holder if suchHolder has provided wire transfer instructions in writing to the Trustee notless than 10 Business Days prior to the interest payment date.  Any wire transfer instructions received by the trustee will remain ineffect until revoked by the registered holder. Notwithstanding the foregoing, so long as

 

A-2-7

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

 

3.     PAYINGAGENT, REGISTRAR AND CONVERSION AGENT

 

Initially, U.S. BankNational Association (the “Trustee”, which term shall include any successortrustee under the Indenture hereinafter referred to) will act as Paying Agent,Registrar and Conversion Agent.  TheCompany may change any Paying Agent, Registrar or Conversion Agent withoutnotice to the Holder.  The Company orany of its Subsidiaries may, subject to certain limitations set forth in theIndenture, act as Paying Agent or Registrar.

 

4.     INDENTURE,LIMITATIONS

 

This Note is one of aduly authorized issue of Securities of the Company designated as its FloatingRate Convertible Subordinated Notes Due June 15, 2013 (the “Notes”),issued under an Indenture dated as of June 4, 2003 (together with anysupplemental indentures thereto, the “Indenture”), between the Company and theTrustee.  The terms of this Note includethose stated in the Indenture and those required by or made part of theIndenture by reference to the Trust Indenture Act of 1939, as amended, as ineffect on the date of the Indenture. This Note is subject to all such terms, and the Holder of this Note isreferred to the Indenture and said Act for a statement of them.  Capitalized terms used and not definedherein have the meanings assigned to such terms in the Indenture.

 

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

 

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

 

At the option of theHolder and subject to the terms and conditions of the Indenture, the Companyshall become obligated to purchase all or any part specified by the Holder (solong 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 is30 Business Days after the occurrence of a Change in Control, at apurchase price equal to 100% of the principal amount thereof together withaccrued interest and Additional Interest, if any, up to, but excluding, theChange in Control Purchase Date.  TheHolder 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 theBusiness Day next preceding the Change in Control Purchase Date by delivering awritten notice of withdrawal to the Paying Agent in accordance with the termsof the Indenture.

 

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

 

6.     CONVERSION

 

A Holder of a Note mayconvert 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 ofCommon Stock at any time prior to the close of business on the Final MaturityDate; provided, however, that if the Note is subject toredemption or purchase upon a Change in Control, the conversion right willterminate at the close of

 

A-2-8

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

 

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

 

To convert a Note, aHolder must (a) complete and manually sign the conversion notice set forthbelow and deliver such notice to a Conversion Agent, (b) surrender theNote to a Conversion Agent, (c) furnish appropriate endorsements andtransfer 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 (inwhole or in part) during the period from the close of business on any regularrecord date to the opening of business on the next succeeding interest paymentdate, if any, shall also be accompanied by payment in funds acceptable to theCompany of an amount equal to the interest payable on such interest paymentdate on the principal amount of such Note then being converted, and suchinterest shall be payable to such registered Holder notwithstanding theconversion of such Note, subject to the provisions of this Indenture relatingto the payment of defaulted interest, if any, by the Company in each case tothe extent provided in the Indenture, including Section 4.2 thereof.  If the Company defaults in the payment ofinterest payable on such interest payment date, if any, the Company shallpromptly repay such funds to such Holder. A Holder may convert a portion of a Note equal to $1,000 or any integralmultiple thereof.

 

A Note in respect ofwhich a Holder had delivered a Change in Control Purchase Notice exercising theoption of such Holder to require the Company to purchase such Note may beconverted only if the Change in Control Purchase Notice is withdrawn inaccordance with the terms of the Indenture.

 

7.     SUBORDINATION

 

The indebtednessevidenced by the Notes is, to the extent and in the manner provided in theIndenture, subordinate and junior in right of payment to the prior payment infull of all Senior Indebtedness of the Company (including any interest accruingsubsequent to the commencement of any bankruptcy or similar proceeding, whetheror not a claim for post-petition interest is allowed as a claim in any suchproceeding).  Any Holder by acceptingthis Note agrees to and shall be bound by such subordination provisions andauthorizes the Trustee to give them effect. In addition to all other rights ofSenior Indebtedness described in the Indenture, the Senior Indebtedness shallcontinue to be Senior Indebtedness and entitled to the benefits of thesubordination provisions irrespective of any amendment, modification or waiverof any terms of any instrument relating to the Senior Indebtedness or anyextension or renewal of the Senior Indebtedness.

 

8.     DENOMINATIONS,TRANSFER, EXCHANGE, CANCELLATION

 

The Notes are inregistered form, without coupons, in denominations of $1,000 and integralmultiples of $1,000.  A Holder mayregister the transfer of or exchange Notes in accordance with the

 

A-2-9

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Indenture.  The Registrar may require a Holder, amongother things, to furnish appropriate endorsements and transfer documents and topay any taxes or other governmental charges that may be imposed in relationthereto by law or permitted by the Indenture.

 

All Notes surrendered forpayment, registration of transfer or exchange or conversion will, ifsurrendered to the Company or any of its other Agents with respect to theNotes, be delivered to the Trustee.  TheTrustee will promptly cancel all Notes delivered to it.  No Notes will be authenticated in exchangefor any Notes cancelled as provided in the Indenture.

 

9.     PERSONSDEEMED OWNERS

 

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

 

10.   UNCLAIMEDMONEY

 

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

 

11.   AMENDMENT,SUPPLEMENT AND WAIVER

 

Subject to certainexceptions, the Indenture or the Notes may be amended or supplemented with theconsent of the Holders of at least a majority in aggregate principal amount ofthe Notes then outstanding, and an existing default or Event of Default and itsconsequence or compliance with any provision of the Indenture or the Notes maybe waived in a particular instance with the consent of the Holders of amajority in aggregate principal amount of the Notes then outstanding.  Without the consent of or notice to anyHolder, the Company and the Trustee may amend or supplement the Indenture orthe Notes to, among other things, cure any ambiguity, defect or inconsistencyor make any other change that does not adversely affect the rights of anyHolder.

 

12.   SUCCESSORENTITY

 

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

 

13.   DEFAULTSAND REMEDIES

 

Under the Indenture, anEvent of Default includes: (i) default for 30 days in payment of interest  or Additional Interest, if any, on anyNotes; (ii) default in payment of any principal (including, withoutlimitation, any premium) on the Notes when due; (iii) failure by theCompany for 60 days after notice to it to comply with any of its othercovenants contained in the Indenture or the Notes; (iv) default in the paymentof certain indebtedness of the Company or a Significant Subsidiary;(v) certain events of bankruptcy, insolvency or reorganization of theCompany or any Significant Subsidiary and (vi) certain other eventsdescribed in the Indenture.  If an Eventof Default (other than as a result of certain events of bankruptcy, insolvencyor reorganization of the Company) occurs and is continuing, the Trustee or theHolders of at least 25% in aggregate principal amount of the Notes thenoutstanding may declare all unpaid principal to the date of acceleration on theNotes then outstanding to be due and payable

 

A-2-10

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

 

14.   REDEMPTIONAT THE OPTION OF THE COMPANY.

 

No sinking fund isprovided for the Notes.  Prior to June23, 2008, the Notes will not be redeemable. Beginning on that date, the Company may redeem the Notes as a whole atany 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 andunpaid 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 willbe mailed at least 30 days but not more than 60 days before the redemption dateto each holder of Notes to be redeemed at the Holder’s registered address. Ifmoney sufficient to pay the redemption price plus accrued and unpaid interestto, but excluding, the redemption date of all Notes (or portions thereof) to beredeemed on the redemption date is deposited with the Paying Agent prior to oron the redemption date, immediately after such redemption date interest ceasesto 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 integralmultiples of $1,000 of principal amount.

 

15.   TRUSTEEDEALINGS WITH THE COMPANY

 

U.S. Bank NationalAssociation, the Trustee under the Indenture, in its individual or any othercapacity, may make loans to, accept deposits from and perform services for theCompany or an Affiliate of the Company, and may otherwise deal with the Companyor an Affiliate of the Company, as if it were not the Trustee.

 

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16.   NO RECOURSEAGAINST OTHERS

 

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

 

17.   AUTHENTICATION

 

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

 

18.   ABBREVIATIONSAND DEFINITIONS

 

Customary abbreviationsmay 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 (= jointtenants with right of survivorship and not as tenants in common), CUST (=Custodian) and UGMA (= Uniform Gifts to Minors Act).

 

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

 

19.   INDENTURETO CONTROL; GOVERNING LAW

 

In the case of anyconflict between the provisions of this Note and the Indenture, the provisionsof the Indenture shall control.  ThisNote shall be governed by, and construed in accordance with, the laws of theState of New York, without regard to principles of conflicts of law.

 

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

 

A-2-12

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**ASSIGNMENTFORM**

** **

To assign this Note, fillin the form below:

 

I or we assign andtransfer this Note to

 

 

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

 

 

 

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

 

and irrevocably appoint

 

 

agent to transfer thisNote on the books of the Company.  Theagent 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:                        |   |                                       |   |
|                            |        |                                            |  |  |  |

 

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

 

A-2-13

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**CONVERSIONNOTICE**

** **

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

 

To convert only part ofthis Note, state the principal amount to be converted (must be $1,000 or aintegral multiple of $1,000): $           .

 

If you want the stockcertificate 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’sname, address and zip code)

 
|                       |   | Your Signature:                            |
|----------------------------|--------|--------------------------------------------|
|                       |   |                                       |
| Date:                      |   |                                       |   |
|                       |   | (Sign exactly as  your name appears on the |
|                       |   | other side of  this Note)                  |
|                       |   |                                       |
| *Signature guaranteed  by: |   |
|                       |   |                                       |
| By:                        |   |                                       |   |
|                            |        |                                            |  |  |  |

 

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

 

A-2-14

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**OPTIONTO ELECT REPURCHASE**

**UPONA CHANGE IN CONTROL**

** **

To:          ADC Telecommunications, Inc.

 

The undersignedregistered owner of this Security hereby irrevocably acknowledges receipt of anotice from ADC Telecommunications, Inc. (the “Company”) as to the occurrenceof a Change in Control with respect to the Company and requests and instructsthe Company to purchase the entire principal amount of this Security, or theportion thereof (which is $1,000 or an integral multiple thereof) belowdesignated, in accordance with the terms of the Indenture referred to in thisSecurity at the Change in Control Purchase Price, together with accruedinterest, if any, to, but excluding, such date, to the registered Holderhereof.

 
| 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 mustcorrespond to the Name as written upon the face of this Security in everyparticular, without alteration or any change whatsoever.

 

A-2-15

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**SCHEDULEOF 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** |       |
|-----------------------------------------------------------------------------------------------------|--------|------------------------------------------------|------------|------------------------------------------------------------------|------------|-------------------------------------------------------------------|------------|
|                                                                                                |   |                                           | ** ** |                                                             | ** ** |                                                              | ** ** |
|                                                                                                |   |                                           |       |                                                             |       |                                                              |       |
|                                                                                                |   |                                           |       |                                                             |       |                                                              |       |

** **

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

** **

A-2-16

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**CERTIFICATETO BE DELIVERED UPON EXCHANGE OR REGISTRATIONOF TRANSFER OF RESTRICTED SECURITIES(4)**

** **

Re:                               FloatingRate Convertible Subordinated Notes Due June 15, 2013 (the “Notes”) of ADCTelecommunications, Inc.

 

This certificate relatesto $         principal amount of Notesowned in (check applicable box)

 

o   book-entry or    o   definitive form by                           (the“Transferor”).

 

The Transferor hasrequested a Registrar or the Trustee to exchange or register the transfer ofsuch Notes.

 

In connection with suchrequest and in respect of each such Note, the Transferor does hereby certifythat the Transferor is familiar with transfer restrictions relating to theNotes as provided in Section 2.12 of the Indenture dated as of June 4, 2003between ADC Telecommunications, Inc. and U.S. Bank National Association, astrustee (the “Indenture”), and the transfer of such Securities is in accordancewith any applicable securities laws of any state and is being made pursuant toan effective registration statement under the Securities Act of 1933, asamended (the “Securities Act”) (check applicable box) or the transfer orexchange, as the case may be, of such Note does not require registration underthe Securities Act because (check applicable box):

 

o                                    Such Note is beingtransferred pursuant to an effective registration statement under theSecurities Act.

 

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

 

o                                    Such Note is beingtransferred to the Company.

 

o                                    Such Note is beingtransferred to a person the Transferor reasonably believes is a “qualifiedinstitutional buyer” (as defined in Rule 144A or any successor provisionthereto (“Rule 144A”) under the Securities Act) that is purchasing for itsown account or for the account of a “qualified institutional buyer”, in eachcase to whom notice has been given that the transfer is being made in relianceon such Rule 144A, and in each case in reliance on Rule 144A.

 

o                                    Such Note is beingtransferred pursuant to and in compliance with an exemption from theregistration requirements under the Securities Act in accordance withRule 144 (or any successor thereto) (“Rule 144”) under the SecuritiesAct.

 

o                                    Such Note is beingtransferred to a non-U.S. Person in an offshore transaction in compliance withRule 904 of Regulation S under the Securities Act (or any successorthereto).

 

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(4) Thiscertificate should only be included if this Security is a Transfer RestrictedSecurity.

 

A-2-17

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

 

 
| Date:  |   |   |                         |
|--------|--------|--------|------------------------------|
|   |   |   | (Insert Name of  Transferor) |

 

A-2-18

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