Exhibit 4.1


 


EXECUTION COPY


 


$225,000,000


 


COMMSCOPE, INC.


 


1.00% CONVERTIBLE SENIOR SUBORDINATED
DEBENTURES DUE 2024


 


PURCHASE AGREEMENT


 


March 18, 2004


 


Wachovia Capital Markets, LLC


Merrill Lynch, Pierce, Fenner & Smith Incorporated


As Representatives of the Several


Initial Purchasers named in Schedule


I hereto


c/o Wachovia Capital Markets, LLC


301 South
College Street, 4th Floor


Charlotte, North Carolina 28288-0735


 


Dear Sirs and Mesdames:


 


CommScope, Inc., a Delaware corporation (the “Company”) confirms its
agreement with respect to the proposed issuance and sale to the several
purchasers named in Schedule I hereto (the “Initial  Purchasers”) of $225,000,000
principal amount of the Company’s 1.00% Convertible Senior Subordinated
Debentures Due 2024 (the “Firm Securities”) to be issued pursuant to
the provisions of an Indenture to be dated as of March 24, 2004 (the “Indenture”)
between the Company and Wachovia Bank, National Association, as Trustee (the “Trustee”).  The Company also proposes to issue and sell
to the Initial Purchasers not more than an additional $25,000,000 principal
amount of its 1.00% Convertible Senior Subordinated Debentures Due 2024 (the “Additional
Securities”, and together with the Firm Securities, the “Securities”)
if and to the extent that you shall have determined to exercise, on behalf of
the Initial Purchasers, the right to purchase such Additional Securities
granted to the Initial Purchasers in Section 2 hereof.  The Securities will be convertible into
shares of Common Stock, par value $0.01 per share, of the Company (the “Common Stock”,
and such shares into which the Securities are convertible, the “Underlying
Securities”).


 


Wachovia Capital Markets, LLC and Merrill Lynch, Pierce, Fenner &
Smith Incorporated have agreed to act as the joint book-running managers and as
Representatives of the Initial Purchasers (in such capacity, the “Representatives”)
in connection with the offering and sale of the Securities.


 

















 


The Securities and the Underlying Securities will be offered without
being registered under the Securities Act of 1933, as amended (the “Securities
Act”), to qualified institutional buyers in compliance with the
exemption from registration provided by Rule 144A under the Securities Act.


 


The Initial Purchasers and their direct and indirect transferees will
be entitled to the benefits of a Registration Rights Agreement dated the
Closing Date (as defined herein) between the Company and the Initial Purchasers
(the “Registration
Rights Agreement”).


 


The Company has prepared and delivered to each Initial Purchaser copies
of a preliminary offering memorandum dated March 17, 2004 (the “Preliminary Memorandum”) and has prepared
and will deliver to each Initial Purchaser, on the date hereof or the next
succeeding day, copies of a final offering memorandum dated March 18, 2004
(the “Final Memorandum”), each for
use by such Initial Purchaser in connection with its solicitation of purchases
of, or offering of, the Securities.  “Memorandum” means, with respect to any date
or time referred to in this Agreement, the most recent offering memorandum
(whether the Preliminary Memorandum or the Final Memorandum, or any amendment
or supplement to either such document), including exhibits thereto and any
documents incorporated by reference therein, which has been prepared and
delivered by the Company to the Initial Purchasers in connection with their
solicitation of purchases of, or offering of, the Securities.  The terms “supplement”, “amendment”
and “amend”
as used herein with respect to a Memorandum shall include all documents
incorporated by reference in the Memorandum that are filed subsequent to the
date of the Memorandum with the Securities and Exchange Commission (the “Commission”)
pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”).


 


All references in this Agreement to the Common Stock shall be deemed to
include the rights evidenced by such Common Stock to the extent provided in the
Rights Agreement dated as of June 30, 1997 between the Company and
ChaseMellon Shareholder Services, L.L.C., as amended, as of the date hereof.


 


1.                                       Representations
and Warranties.  The Company
jointly represents and warrants to, and agrees with, you that:


 


(a)                                  (i)
Each document, if any, filed or to be filed pursuant to the Exchange Act and
incorporated by reference in the Memorandum complied when filed or will comply
when so filed in all material respects with the Exchange Act and the applicable
rules and regulations of the Commission thereunder and (ii) the Memorandum, in
the form used by the Initial Purchasers to confirm sales, as of its date and
the Closing Date (as defined in Section 4), will not contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements


 


2

















 


therein, in
the light of the circumstances under which they were made, not misleading,
except that the representations and warranties set forth in this paragraph do
not apply to statements or omissions in the Memorandum based upon information
relating to any Initial Purchaser furnished to the Company in writing by such
Initial Purchaser through you expressly for use therein.


 


(b)                                 The
Company has been duly incorporated, is validly existing as a corporation in
good standing under the laws of the State of Delaware, has the corporate power
and authority to own its property and to conduct its business as described in
the Memorandum and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not
have a material adverse effect on the condition, financial or otherwise, or in
the earnings, business affairs or business prospects of the Company and its
subsidiaries, considered together as one enterprise, whether or not arising in
the ordinary course of business (a “Material Adverse Effect”).


 


(c)                                  Each
“significant subsidiary” of the Company (as such term is defined in Rule 1-02
of Regulation S-X) (each, a “Significant Subsidiary” and collectively,
the “Significant
Subsidiaries”) has been duly organized and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation; each of the Significant Subsidiaries of the Company has
corporate power and authority to own, lease and operate its properties and to
conduct its business as described in the Memorandum, is duly qualified as a foreign
corporation to transact business and is in good standing in each jurisdiction
in which such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure so to
qualify or to be in good standing would not, except as otherwise disclosed in
the Memorandum, have a Material Adverse Effect; the issued and outstanding
capital stock of each of the Company’s Significant Subsidiaries has been duly
authorized and validly issued, is fully paid and non-assessable, and except as
otherwise disclosed in the Memorandum, is owned by the Company, directly or
indirectly, free and clear of any security interest, mortgage, pledge, lien,
encumbrance or claim (other than the restrictions on the Company’s ability to
transfer its interests in OFS CommScope Optical Technologies, Inc.); none of
the outstanding shares of capital stock of any of the Company’s Significant
Subsidiaries held directly or indirectly by the Company was issued in violation
of the preemptive or similar rights of any securityholder of such Significant
Subsidiary.


 


3

















 


(d)                                 This
Agreement has been duly authorized, executed and delivered by the Company.


 


(e)                                  The
authorized capital stock of the Company conforms as to legal matters to the
description thereof contained in the Memorandum.


 


(f)                                    The
shares of Common Stock outstanding prior to the issuance of the Securities have
been duly authorized and are validly issued, fully paid and non-assessable.


 


(g)                                 The
Firm Securities and the Additional Securities have been duly authorized and,
when executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Initial Purchasers in accordance
with the terms of this Agreement, will be valid and binding obligations of the
Company, enforceable in accordance with their terms, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors’ rights generally
and equitable principles of general applicability, and will be entitled to the
benefits of the Indenture and the Registration Rights Agreement.


 


(h)                                 The
Underlying Securities issuable upon conversion of the Securities have been duly
authorized and reserved and, when issued upon conversion of the Securities in
accordance with the terms of the Securities, will be validly issued, fully paid
and non-assessable, and the issuance of the Underlying Securities will not be
subject to any preemptive or similar rights.


 


(i)                                     Except
(a) for the registration rights contained in the Registration Rights Agreement
and (b) as otherwise disclosed in the Memorandum, the Company has not granted
or agreed to grant to any Person any rights (including “piggy-back”
registration rights) to have any securities of the Company registered with the
Commission or any other governmental authority that have not been satisfied.


 


(j)                                     There
are no voting agreements, voting trusts, proxies or other agreements or
understandings with respect to the voting of any capital stock of the Company
or any of its subsidiaries to which the Company or any of its subsidiaries is a
party other than: (i) the Stockholders Agreement dated as of October 9,
2002 (the “Stockholders Agreement”) by and between the Company and The
Furukawa Electric Co., Ltd. (“Furukawa”) and (ii) that certain Letter
Agreement between the Company and Avaya Inc. dated October 26, 2003.


 


(k)                                  Each
of the Indenture and the Registration Rights Agreement has been duly
authorized, executed and delivered by, and is a


 


4

















 


valid and
binding agreement of, the Company enforceable in accordance with its terms,
subject to applicable bankruptcy, insolvency and similar laws affecting
creditors’ rights generally and equitable principles of general applicability
and except as rights to indemnification and contribution under the Registration
Rights Agreement may be limited under applicable law.


 


(l)                                     The
execution and delivery by the Company, and the performance by the Company of
its obligations under, this Agreement, the Indenture, the Registration Rights
Agreement and the Securities will not result in (i) the violation of any
provision of applicable law or the certificate of incorporation or by-laws of
the Company or any of its Significant Subsidiaries, or to the Company’s
knowledge, any judgment, order or decree of any governmental body, agency or
court having jurisdiction over such entity, or (ii) breach of, or default
under, any agreement or other instrument binding upon the Company or any of its
Significant Subsidiaries that is material to such entity and no consent,
approval, authorization or order of, or qualification with, any governmental
body or agency is required for the performance by the Company of its
obligations under this Agreement, the Indenture, the Registration Rights
Agreement or the Securities, except such as may be required by the securities
or Blue Sky laws of the various states in connection with the offer and sale of
the Securities and by Federal and state securities laws with respect to the
obligations of the Company under the Registration Rights Agreement.


 


(m)                               Except
as otherwise disclosed in the Memorandum, subsequent to the respective dates as
of which information is given in the Memorandum, (i) there has not occurred any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries, considered together as one enterprise, whether or not arising in
the ordinary course of business; (ii) the Company and its subsidiaries,
considered as one entity, have not incurred any liability or obligation,
indirect, direct or contingent, not in the ordinary course of business nor
entered into any transaction or agreement not in the ordinary course of
business which, in either case, is material to the Company and its subsidiaries
taken as a whole; and (iii) there has been no dividend or distribution of any
kind declared, paid or made by the Company or, except for dividends paid to the
Company or its subsidiaries, any of its subsidiaries on any class of capital
stock or repurchase or redemption by the Company or any of its subsidiaries of
any class of capital stock.


 


(n)                                 None
of the Company or any of its Significant Subsidiaries is in violation of its
charter or by-laws or in default in the performance of


 


5

















 


any
obligation, agreement, covenant or condition contained in any indenture, loan
agreement, mortgage, lease or other agreement or instrument that is material to
such entity and to which such entity is a party or by which such entity or its
property is bound, except for such defaults that would not, singly or in the
aggregate, have a Material Adverse Effect.


 


(o)                                 No
subsidiary of the Company is currently prohibited, directly or indirectly, from
paying dividends to the Company, from making any other distribution on such
subsidiary’s capital stock, from repaying to the Company any loans or advances
to such subsidiary from the Company or from transferring any of such
subsidiary’s property or assets to the Company or any other subsidiary of the
Company, except as described in the Memorandum.


 


(p)                                 There
are no legal or governmental proceedings pending or, to the knowledge of the
Company, threatened to which the Company or any of its subsidiaries is a party
or to which any of the properties of such entity is subject other than
proceedings described in the Memorandum and proceedings that would not have a
Material Adverse Effect or a material adverse effect on the ability of the
Company to perform its obligations under this Agreement, the Indenture, the
Registration Rights Agreement or the Securities or to consummate the
transactions contemplated therein.


 


(q)                                 The
Company and each of its Significant Subsidiaries (i) are in compliance with any
and all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants (“Environmental
Laws”), (ii) have received all permits, licenses or other approvals
required of it under applicable Environmental Laws to conduct their respective
businesses, (iii) are in compliance with all terms and conditions of any such
permit, license or approval, (iv) are in compliance with any applicable
provision of the Employee Retirement Income Security Act of 1974, as amended,
(“ERISA”)
or the rules and regulations promulgated thereunder and (v) are in compliance
with any applicable provision of the Foreign Corrupt Practice Act or the rules
and regulations promulgated thereunder, except where such noncompliance with
Environmental Laws, failure to receive required permits, licenses or other
approvals, failure to comply with the terms and conditions of such permits,
licenses or approvals, or noncompliance with ERISA or the Foreign Corrupt
Practices Act would not in each case, singly or in the aggregate, have a
Material Adverse Effect.


 


6

















 


(r)                                    Except
as disclosed in the Memorandum, there are no costs or liabilities associated
with Environmental Laws (including, without limitation, any capital or
operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any permit, license or approval, any
related constraints on operating activities and any potential liabilities to
third parties) which would, singly or in the aggregate, have a Material Adverse
Effect.


 


(s)                                  The
Company is not, and after giving effect to the offering and sale of the
Securities and the application of the proceeds thereof as described in the
Memorandum will not be, an “investment company” as such term is defined in the
Investment Company Act of 1940, as amended.


 


(t)                                    Neither
the Company nor any of its affiliates (as defined in Rule 501(b) of Regulation
D under the Securities Act, each an “Affiliate”) has directly, or through any
agent, (i) sold, offered for sale, solicited offers to buy or otherwise
negotiated in respect of, any security (as defined in the Securities Act) which
is or will be integrated with the sale of the Securities in a manner that would
require the registration under the Securities Act of the Securities or (ii)
offered, solicited offers to buy or sold the Securities by any form of general
solicitation or general advertising (as those terms are used in Regulation D
under the Securities Act) or in any manner involving a public offering within
the meaning of Section 4(2) of the Securities Act.


 


(u)                                 Based
on the representations and warranties of the Initial Purchasers and compliance
with the covenants by the Initial Purchasers as set forth in Section 7 of
this Agreement, it is not necessary in connection with the offer, sale and
delivery of the Securities to the Initial Purchasers in the manner contemplated
by this Agreement to register the Securities or the Underlying Securities under
the Securities Act or to qualify the Indenture under the Trust Indenture Act of
1939, as amended.


 


(v)                                 The
Securities satisfy the requirements set forth in Rule 144A(d)(3) under the
Securities Act.


 


(w)                               The
Company has established and maintained disclosure controls and procedures (as
defined in Exchange Act Rules 13a-15 and 15d-15) that are designed to ensure
that material information relating to the Company is made known to its chief
executive officer and chief financial officer by others within the Company and
its subsidiaries.


 


(x)                                   The
books, records and accounts of the Company and each of its subsidiaries
accurately and fairly reflect, in reasonable detail, the transactions in, and
dispositions of, the assets of, and the results of


 


7

















 


operations of,
such entity.  The Company and its
subsidiaries, taken as a whole, maintain a system of accounting controls sufficient
to provide reasonable assurances that (a) transactions are executed in
accordance with management’s general or specific authorization, (b)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain accountability for assets and (c) access to assets is permitted only
in accordance with management’s general or specific authorization.


 


(y)                                 The
Company and each of its Significant Subsidiaries own or possess, or own or
possess licenses or other rights to use, all material patents, patent rights,
licenses, inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information, systems
or procedures), trademarks, service marks and trade names (collectively, the “Intellectual
Property”) currently employed or required by such entity in
connection with the business currently conducted by such entity as described in
the Memorandum, except such as the failure to so own or possess would not have,
singly or in the aggregate, a Material Adverse Effect.  To the best of the Company’s knowledge,
there are no valid and enforceable United States patents that are infringed by
the business currently conducted by the Company and each of its subsidiaries,
or as currently proposed to be conducted by such entity, as described in the
Memorandum and which would have a Material Adverse Effect.  The Company and each of its subsidiaries are
not subject to any judgment, order, writ, injunction or decree of any court or
any Federal, state, local, foreign or other governmental agency or
instrumentality which restricts or impairs the use of the Intellectual Property
in a manner which would have a Material Adverse Effect.  None of the Company or any of its
subsidiaries has received any written notice of infringement of or conflict
with asserted rights of any third party with respect to the Intellectual
Property which would have a Material Adverse Effect.


 


(z)                                   The
Company and each of its Significant Subsidiaries have all material permits,
licenses, consents, exemptions, franchises, authorizations and other approvals
(each, an “Authorization”) of, and have made all filings with and notices
to, all appropriate federal, state, local or foreign governmental or regulatory
authorities and self regulatory organizations and all courts and other
tribunals, as are necessary to own, lease, license and operate their respective
properties and to conduct their respective businesses, except to the extent the
failure to have any such Authorization or to make any such filing or notice
would not, singly or in the aggregate, have a Material Adverse Effect.  Each such Authorization is valid and in full
force and effect and such entity is in compliance with all the terms and
conditions thereof and with the rules and regulations of the


 


8

















 


authorities
and governing bodies having jurisdiction with respect thereto; and no event has
occurred (including, without limitation, the receipt of any notice from any
authority or governing body) which allows or, after notice or lapse of time or
both, would allow, revocation, suspension or termination of any such
Authorization or results or, after notice or lapse of time or both, would
result in any other impairment of the rights of the holder of any such
Authorization; and such Authorizations contain no restrictions that are
burdensome to such entity; except to the extent such failure to be valid and in
full force and effect or to be in compliance, the occurrence of any such event
or the presence of any such restriction would not, singly or in the aggregate,
have a Material Adverse Effect.


 


(aa)                            There
are no outstanding subscriptions, rights, warrants, options, calls or
convertible securities granted or issued by the Company or any of its
subsidiaries relating to or entitling any person to purchase or otherwise to
acquire any shares of the capital stock of such entity, except for options
granted to directors and employees of the Company in the ordinary course of
business, the Company’s 4% Convertible Subordinated Notes due 2006, or as
described in the Memorandum.


 


(bb)                          The
historical financial statements of the Company incorporated by reference in the
Memorandum, together with related schedules and notes, present fairly in all
material respects the financial position, results of operations and changes in
financial position of the Company on the basis stated therein at the respective
dates or for the respective periods to which they apply; such statements and
related schedules and notes have been prepared in accordance with generally
accepted accounting principles consistently applied throughout the periods
involved; and the other financial and statistical information and data of the
Company set forth in the Memorandum are, in all material respects, accurately
presented and prepared on a basis consistent with such financial statements and
the books and records of the Company. 
The financial information relating to the Company set forth under the
captions “Summary- CommScope Summary Historical Financial Data”,
“Capitalization”, “CommScope Selected Historical Financial Data” and “Unaudited
Pro Forma Combined Financial Information” in the Memorandum are derived from
the accounting records of the Company and its subsidiaries and fairly present
in all material respects, on the basis stated in the Memorandum, the
information included therein.  The pro
forma consolidated financial statements of the Company and its subsidiaries and
the related notes thereto included under the caption “Unaudited Pro Forma
Combined Financial Information” and elsewhere in the Offering Memorandum
present fairly in all material respects the information contained therein, have
been prepared in accordance with the Commission’s rules and guidelines with
respect to pro forma financial


 


9

















 


statements and
have been properly presented on the bases described therein, and the
assumptions used in the preparation thereof are reasonable and the adjustments
used therein are appropriate to give effect to the transactions and
circumstances referred to therein.


 


(cc)                            No
facts or circumstances have come to the Company’s attention to cause it to
believe that (i) the financial statements of Avaya Connectivity Solution  (“ACS”) incorporated by reference in the
Memorandum to the Company’s Form 8-K/A filed with the Commission on
March 17, 2004, together with related schedules and notes, do not fairly
present in all material respects the financial position, results of operations
and changes in financial position of ACS on the basis stated therein at the
respective dates or for the respective periods to which they apply and (ii)
such statements and related schedules and notes have not been prepared in
accordance with generally accepted accounting principles consistently applied
throughout the periods involved.


 


(dd)                          There
are no existing or, to the knowledge of the Company, threatened labor disputes
with the employees of the Company or any of its subsidiaries which would have a
Material Adverse Effect.


 


(ee)                            The
statements relating to legal matters, documents or proceedings included in the
Memorandum under the captions “Description of Capital Stock” and “Description
of the Debentures” fairly summarize in all material respects such matters,
documents or proceedings.


 


(ff)                                Neither
the Company, nor to its knowledge, any of its officers, directors or affiliates
has taken, or will take, directly or indirectly, any action designed to or
which might reasonably be expected to cause or result in, or which has
constituted or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of the Common Stock or any security
convertible into or exchangeable for Common Stock to facilitate the sale or
resale of any of the Securities.


 


(gg)                          The
Company and each of its subsidiaries have filed all Federal, state, local and
foreign tax returns which are required to be filed through the date hereof
(except where the failure to so file would not be reasonably likely to have a
Material Adverse Effect), which returns are true and correct except for
inaccuracies which would not have a Material Adverse Effect, or have received
extensions thereof, and have paid all taxes shown on such returns and all
assessments received by them to the extent that the same have become due,
except for such taxes or assessments, if any, as are being contested in good
faith and as to which adequate reserves have been provided or for which failure
to pay would not have a Material Adverse Effect.  There are no tax audits or


 


10

















 


investigations
pending, which if adversely determined, would have a Material Adverse Effect.


 


(hh)                          The
Company and each of its Significant Subsidiaries are insured against such
losses and risks and in such amounts containing such deductibles and covering
such risks as commercially prudent under the circumstances, except where the
failure to do so would not have a Material Adverse Effect, and all such
insurance is in full force and effect.


 


(ii)                                  None
of the Company or any of its subsidiaries or any other person associated with
or acting on behalf of such entity including, without limitation, any director,
officer, agent or employee of such entity has, directly or indirectly, while
acting on behalf of such entity (i) used any corporate funds for unlawful
contributions, gifts, entertainment or other unlawful expenses relating to
political activity; (ii) made any unlawful payment to foreign or domestic
government officials or employees or to foreign or domestic political parties
or campaigns from corporate funds; (iii) violated any provision of the Foreign
Corrupt Practices Act of 1977, as amended; or (iv) made any other unlawful
payment.


 


(jj)                                  The
Company and each of its Significant Subsidiaries have good and marketable title
to all real property and good and marketable title to all personal property
owned by such entity, in each case free and clear of all liens, encumbrances
and defects except such as are described in the Memorandum or such as do not
materially affect the value of such property and do not interfere with the use
made and proposed to be made of such property by such entity.  Any real property and buildings held under
lease by such entity is held by it under valid, subsisting and enforceable
leases with such exceptions as are not material and do not interfere with the
use made and proposed to be made of such property and buildings by such entity.


 


(kk)                            There
is no document, contract or other agreement of a character required to be filed
under the Exchange Act which is not described or filed as required by the
Exchange Act or the rules and regulations of the Commission thereunder.


 


2.                                       Agreements
to Sell and Purchase.  The
Company hereby agrees to sell to the several Initial Purchasers, and each
Initial Purchaser, upon the basis of the representations and warranties herein
contained, but subject to the conditions hereinafter stated, agrees, severally
and not jointly, to purchase from the Company the respective principal amount
of Firm Securities set forth in Schedule I hereto opposite its name at a
purchase price of 97.50% of the principal amount thereof (the “Purchase
Price”).


 


11

















 


On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to sell
to the Initial Purchasers the Additional Securities, and the Initial Purchasers
shall have the right to purchase, severally and not jointly, up to $25,000,000
principal amount of Additional Securities at the Purchase Price plus accrued
interest, if any, to the date of payment and delivery.  You may exercise this right on behalf of the
Initial Purchasers in whole or from time to time in part by giving written
notice not later than 30 days after the Closing Date.  Any exercise notice shall specify the principal amount of
Additional Securities to be purchased by the Initial Purchasers and the date on
which such Additional Securities are to be purchased.  Each purchase date must be at least one business day after the
written notice is given and may not be earlier than the closing date for the
Firm Securities nor later than ten business days after the date of such notice.  On each day, if any, that Additional
Securities are to be purchased (an “Option Closing Date”), each Initial
Purchaser agrees, severally and not jointly, to purchase the principal amount
of Additional Securities (subject to such adjustments to eliminate fractional
Securities as you may determine) that bears the same proportion to the total
principal amount of Additional Securities to be purchased on such Option
Closing Date as the principal amount of Firm Securities set forth in
Schedule I opposite the name of such Initial Purchaser bears to the total
principal amount of Firm Securities. 
Notwithstanding anything else to the contrary herein, the Initial
Purchasers shall not have the right to purchase any Additional Securities after
the 13-day period beginning on the issue date of the Firm Securities (within
the meaning of Treas. Reg. Sec. 1.1273-2), unless the Initial Purchasers
represent, either orally or in writing (in their sole discretion), to Fried,
Frank, Harris, Shriver & Jacobson LLP, in their capacity as tax counsel to
the Company, that, after due inquiry, the Additional Securities to be purchased
and resold by the Initial Purchasers will be issued with no more than a de minimis
amount of original issue discount within the meaning of Treas. Reg. Sec.
1.1273-1(d).


 


The Company hereby agrees that, without the prior written consent of
the Representatives, on behalf of the Initial Purchasers, it will not, during
the period ending 90 days after the date of the Memorandum, (i) offer, pledge,
sell, contract to sell, sell any option or contract to purchase, purchase any
option or contract to sell, grant any option, right or warrant to purchase,
lend, or otherwise transfer or dispose of, directly or indirectly, any shares
of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock or (ii) enter into any swap or other arrangement
that transfers to another, in whole or in part, any of the economic
consequences of ownership of the Common Stock, whether any such transaction described
in clause (i) or (ii) above is to be settled by delivery of Common Stock or
such other securities, in cash or otherwise. 
The foregoing sentence shall not apply to (A) the sale of the Securities
under this Agreement or (B) the sale of any shares of Common Stock pursuant to
the Registration Rights Agreement dated as of January 31, 2004 between the


 


12

















 


Company and Avaya Inc., (C) the granting of options pursuant to the
Company’s employee benefit plans existing on the date hereof or (D) the
issuance by the Company of any shares of Common Stock upon the exercise of an
option or warrant or the conversion of a security outstanding on the date
hereof of which the Initial Purchasers have been advised in writing.  The Company hereby agrees that, without the
prior written consent of the Representatives, on behalf of the Initial
Purchasers, it will not, during the period ending 90 days after the date of the
Memorandum, release Furukawa from, or waive any of its agreements with Furukawa
relating to, the restrictions on Furukawa’s ability to sell its shares of
Common Stock of the Company as set forth in Section 3.1(c) of the
Stockholders Agreement.


 


3.                                       Terms of
Offering. You have advised the Company that the Initial Purchasers
will make an offering of the Securities purchased by the Initial Purchasers
hereunder on the terms to be set forth in the Memorandum, as soon as
practicable after this Agreement is entered into as in your judgment is
advisable.


 


4.                                       Payment and Delivery.
Payment for the Firm Securities shall be made to the Company in Federal or
other funds immediately available in New York City against delivery of such
Firm Securities for the respective accounts of the several Initial Purchasers
at 10:00 a.m., New York City time, on March 24, 2004, or at such other
time on the same or such other date, not later than April 1, 2004, as
shall be agreed upon by the Company and you. 
The time and date of such payment are hereinafter referred to as the “Closing Date.”


 


Payment for any Additional Securities shall be made to the Company in
Federal or other funds immediately available in New York City against delivery
of such Additional Securities for the respective accounts of the several
Initial Purchasers at 10:00 a.m., New York City time, on the date specified in
the corresponding notice described in Section 2 or at such other time on
the same or on such other date, in any event not later than April 30, 2004
as shall be agreed upon by the Company and you.


 


The Securities shall be in definitive form or global form, as specified
by you, and registered in such names and in such denominations ($1,000 or
integral multiples of $1,000 in excess thereof) as you shall request in writing
not later than one full business day prior to the Closing Date or the
applicable Option Closing Date, as the case may be. The Securities shall be
delivered to you on the Closing Date or an Option Closing Date, as the case may
be, for the account of the Initial Purchaser, with any transfer taxes payable
in connection with the transfer of the Securities to the Initial Purchaser duly
paid, against payment of the Purchase Price therefor plus accrued interest, if
any, to the date of payment and delivery.


 


5.                                       Conditions
to the Initial Purchasers’ Obligations. The several obligations of
the Initial Purchasers to purchase and pay for the Firm Securities on the
Closing Date are subject to the following conditions:


 


13

















 


(a)                                  Subsequent
to the execution and delivery of this Agreement and prior to the Closing Date:


 


(i)                                     there
shall not have occurred any downgrading, nor shall any notice have been given
of any intended or potential downgrading or of any review for a possible change
that does not indicate the direction of the possible change, in the rating
accorded the Company or any of the Company’s securities or in the rating
outlook for the Company by any “nationally recognized statistical rating
organization,” as such term is defined for purposes of Rule 436(g)(2) under the
Securities Act; and


 


(ii)                                  there
shall not have occurred any change, or any development involving a prospective
change, in the condition, financial or otherwise, or in the earnings, business
or operations of the Company and its subsidiaries taken as one enterprise, from
that set forth in the Memorandum provided to prospective purchasers of the
Securities that, in your judgment, is material and adverse and that makes it,
in your judgment, impracticable to market the Securities on the terms and in the
manner contemplated in the Memorandum.


 


(b)                                 The
Initial Purchasers shall have received on the Closing Date a certificate, dated
the Closing Date and signed by an executive officer of the Company, to the
effect set forth in Section 5(a)(i) and to the effect that the
representations and warranties of the Company contained in this Agreement are
true and correct as of the Closing Date and that the Company has complied with
all of the agreements and satisfied all of the conditions on its part to be
performed or satisfied hereunder on or before the Closing Date.


 


The officer signing and delivering such
certificate may rely upon the best of his or her knowledge as to proceedings
threatened.


 


(c)                                  The
Initial Purchasers shall have received on the Closing Date an opinion of (i)
Fried, Frank, Harris, Shriver & Jacobson LLP, outside counsel for the
Company, dated the Closing Date, to the effect set forth in Exhibit A-1 and
(ii) the General Counsel of the Company, dated the Closing Date, to the effect
set forth on Exhibit A-2.  Such opinions
shall be rendered to the Initial Purchasers at the request of the Company and
shall so state therein.


 


(d)                                 The
Initial Purchasers shall have received on the Closing Date an opinion of Davis
Polk & Wardwell, counsel for the Initial Purchasers, dated the Closing
Date, to the effect set forth in Exhibit B.


 


14

















 


(e)                                  The
Initial Purchasers shall have received on each of the date hereof and the
Closing Date a letter, dated the date hereof or the Closing Date, as the case
may be, in form and substance satisfactory to the Initial Purchasers, from (i)
Deloitte & Touche LLP, independent public accountants, with respect to the
financial information contained in the Memorandum relating to the Company and
(ii) PricewaterhouseCoopers LLP, independent public accountants, with respect
to the financial information contained in the Memorandum relating to ACS and
OFS BrightWave, in each case containing statements and information of the type
ordinarily included in accountants’ “comfort letters” to underwriters with
respect to the financial statements and certain financial information contained
in or incorporated by reference into each Memorandum; provided that, in the case
of the letters delivered on the Closing Date relating to the Company and to OFS
Brightwave, such letters shall use a “cut-off date” not earlier than the date
hereof.


 


(f)                                    The
“lock-up” agreements, each substantially in the form of Exhibit C hereto,
between you and each of the executive officers and directors of the Company
listed on Schedule II hereto relating to sales and certain other
dispositions of shares of Common Stock or certain other securities, delivered
to you on or before the date hereof, shall be in full force and effect on the
Closing Date.


 


The several obligations of the Initial Purchasers to purchase
Additional Securities hereunder are subject to the delivery to you on the
applicable Option Closing Date of such documents as you may reasonably request
with respect to the good standing of the Company, the due authorization,
execution and authentication of the Additional Securities to be sold on such
Option Closing Date and other matters as you may reasonably request.


 


6.                                       Covenants of
the Company.  In further
consideration of the agreements of the Initial Purchasers contained in this
Agreement, the Company covenants with each Initial Purchaser as follows:


 


(a)                                  The
Company will furnish to you in New York City, without charge, prior to
10:00 a.m. New York City time on the business day next succeeding the date
of this Agreement and during the period mentioned in Section 6(c), as many
copies of the Memorandum, any documents incorporated by reference therein and
any supplements and amendments thereto as you may reasonably request.


 


(b)                                 Before
amending or supplementing the Memorandum, the Company will furnish to you a
copy of each such proposed amendment or supplement and will not use any such
proposed amendment or supplement to which you reasonably object.


 


15

















 


(c)                                  If,
during such period after the date hereof and prior to the date on which all of
the Securities shall have been sold by the Initial Purchasers, any event shall
occur or condition exist as a result of which it is necessary in the reasonable
opinion of either the Company or the Initial Purchasers to amend or supplement
the Memorandum in order to make the statements therein, in the light of the
circumstances when the Memorandum is delivered to a purchaser, not misleading,
or to amend or supplement the Memorandum to comply with applicable law, the
Company will prepare and furnish, at its own expense, to the Initial
Purchasers, either amendments or supplements to the Memorandum so that the
statements in the Memorandum as so amended or supplemented will not, in the
light of the circumstances when the Memorandum is delivered to a purchaser, be
misleading or so that the Memorandum, as 
amended or supplemented, will comply with applicable law.


 


(d)                                 The
Company will cooperate with you and its counsel in connection with the
qualification of the Securities for offer and sale under the securities or Blue
Sky laws of such jurisdictions as you shall reasonably request; provided
that the Company will not be obligated to file any general consent to service
of process or to qualify as a foreign corporation or as a dealer in securities
in any jurisdiction in which it is not so qualified or to subject itself to
taxation in respect of doing business in any jurisdiction in which it is not
otherwise subject.


 


(e)                                  Whether
or not the transactions contemplated in this Agreement are consummated or this
Agreement is terminated, the Company shall pay or cause to be paid all expenses
incident to the performance of its obligations under this Agreement, including:
(i) the fees, disbursements and expenses of the Company’s counsel and the
Company’s and ACS’s accountants in connection with the issuance and sale of the
Securities and all other fees or expenses in connection with the preparation of
each Memorandum and all amendments and supplements thereto, including all
printing costs associated therewith, and the delivering of copies thereof to
the Initial Purchasers, in the quantities herein above specified, (ii) all
costs and expenses related to the transfer and delivery of the Securities to
the Initial Purchasers, including any transfer or other taxes payable thereon,
(iii) the cost of printing or producing any Blue Sky or legal investment
memorandum in connection with the offer and sale of the Securities under state
securities laws and all expenses in connection with the qualification of the
Securities for offer and sale under state securities laws as provided in
Section 6(d) hereof, including filing fees and the reasonable fees and
disbursements of counsel for the Initial Purchasers in connection with such
qualification and in connection with the Blue Sky or legal investment
memorandum, (iv) any fees charged by rating agencies for the rating of the
Securities, (v) the fees


 


16

















 


and expenses,
if any, incurred in connection with the admission of the Securities for trading
in PORTAL or any appropriate market system, (vi) the costs and charges of the
Trustee and any transfer agent, registrar or depositary, (vii) the cost of the preparation,
issuance and delivery of the Securities, (viii) the costs and expenses of the
Company relating to investor presentations on any “road show” undertaken in
connection with the marketing of the offering of the Securities, including,
without limitation, expenses associated with the production of road show slides
and graphics, fees and expenses of any consultants engaged in connection with
the road show presentations with the prior approval of the Company, travel and
lodging expenses of the representatives and officers of the Company and any
such consultants,  (ix) the document
production charges and expenses associated with printing this Agreement and (x)
all other costs and expenses incident to the performance of the obligations of
the Company hereunder for which provision is not otherwise made in this
Section.  It is understood, however,
that except as provided in this Section, Section 8, and the last paragraph
of Section 10, the Initial Purchasers will pay all of their costs and
expenses, including fees and disbursements of their counsel, transfer taxes
payable on resale of any of the Securities by them and any advertising expenses
connected with any offers they may make.


 


(f)                                    Neither
the Company nor any affiliate will sell, offer for sale or solicit offers to
buy or otherwise negotiate in respect of any security (as defined in the
Securities Act) which could be integrated with the sale of the Securities in a
manner which would require the registration under the Securities Act of the
Securities.


 


(g)                                 The
Company will not solicit any offer to buy or offer to sell the Securities or
the Underlying Securities by means of any form of general solicitation or
general advertising (as those terms are used in Regulation D under the
Securities Act) or in any manner involving a public offering within the meaning
of Section 4(2) of the Securities Act.


 


(h)                                 While
any of the Securities or the Underlying Securities remain “restricted
securities” within the meaning of the Securities Act, the Company will make
available, upon request, to any seller of such securities the information
specified in Rule 144A(d)(4) under the Securities Act, unless the Company is
then subject to Section 13 or 15(d) of the Exchange Act.


 


(i)                                     If
requested by you, the Company will use its best efforts to permit the
Securities to be designated PORTAL securities in accordance with the rules and
regulations adopted by the National Association of Securities Dealers, Inc.
relating to trading in the PORTAL Market.


 


17

















 


(j)                                     During
the period of two years after the Closing Date or any Option Closing Date, if
later, the Company will not, and will not permit any of its affiliates (as
defined in Rule 144 under the Securities Act) to resell any of the Securities
or the Underlying Securities which constitute “restricted securities” under
Rule 144 that have been reacquired by any of them except pursuant to an
effective registration statement.


 


(k)                                  The
Company will not take any action prohibited by Regulation M under the Exchange
Act in connection with the distribution of the Securities contemplated hereby.


 


7.                                       Offering of
Securities; Restrictions on Transfer.  Each Initial Purchaser, severally and not jointly, represents and
warrants that such Initial Purchaser is a qualified institutional buyer as
defined in Rule 144A under the Securities Act (a “QIB”). Each Initial Purchaser
severally acknowledges that the Securities have not been registered under the
Securities Act and may not be offered or sold except pursuant to an exemption
from, or in a transaction not subject to, the registration requirements of the
Securities Act.  Each Initial Purchaser
severally represents and agrees that it has not offered and sold the
Securities, and will not offer and sell the Securities constituting its
allotment, except in accordance with Rule 144A. Each Initial Purchaser,
severally and not jointly, agrees with the Company that (i) it and each of its
affiliates will not solicit offers for, or offer or sell, such Securities by
any form of general solicitation or general advertising (as those terms are
used in Regulation D under the Securities Act) or in any manner involving a
public offering within the meaning of Section 4(2) of the Securities Act
and (ii) it will solicit offers for such Securities only from, and will offer
such Securities only to, persons that it reasonably believes to be QIBs that in
purchasing such Securities are deemed to have represented and agreed as
provided in the Memorandum under the caption “Transfer Restrictions”.


 


8.                                       Indemnity
and Contribution.  (a) The
Company agrees to indemnify and hold harmless each Initial Purchaser, each
person, if any, who controls any Initial Purchaser within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act,
and each affiliate of any Initial Purchaser within the meaning of Rule 405
under the Securities Act from and against any and all losses, claims, damages
and liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue statement of
a material fact contained in the Memorandum (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto), or caused
by any omission or alleged omission to state therein a material fact necessary
to make the statements therein in the light of the circumstances under which
they were made not misleading, except that this indemnity agreement shall not
apply insofar as such losses, claims, damages or liabilities are caused by any
such untrue statement or omission or alleged untrue


 


18

















 


statement or omission based upon information
relating to any Initial Purchaser furnished to the Company in writing by such
Initial Purchaser through you expressly for use therein; provided, however, that the
Company shall not be liable to any Initial Purchaser under this indemnity
agreement with respect to any Preliminary Memorandum to the extent that any
such loss, claim, damage or liability of such Initial Purchaser results from
the fact that such Initial Purchaser sold Debentures to a person as to whom it
shall be established that there was not sent or given, at or prior to the
written confirmation of such sale, a copy of the Final Memorandum as then
amended or supplemented in any case where such delivery is required by the
Securities Act if the Company has previously furnished copies thereof in
sufficient quantity to such Initial Purchaser and the loss, claim, damage or
liability of such Initial Purchaser results from an untrue statement or
omission or a material fact contained in the Preliminary Memorandum which was
identified in writing at such time to such Initial Purchaser and corrected in
the Final Memorandum as then amended or supplemented.


 


(b)                                 Each
Initial Purchaser agrees, severally and not jointly, to indemnify and hold
harmless the Company its directors, officers and each person, if any, who controls
the Company within the meaning of either Section 15 of the Securities Act
or Section 20 of the Exchange Act to the same extent as the foregoing
indemnity from the Company to such Initial Purchaser, but only with reference
to information relating to such Initial Purchaser furnished to the Company in
writing by such Initial Purchaser through you expressly for use in the
Memorandum or any amendments or supplements thereto.


 


(c)                                  In
case any proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant to
Section 8(a) or 8(b), such person (the “indemnified party”) shall
promptly notify the person against whom such indemnity may be sought (the “indemnifying
party”) in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of
both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in respect of the legal expenses of any indemnified
party in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the fees and expenses of more than one separate
firm (in addition to any local counsel) for all such indemnified


 


19

















 


parties and that all such fees and expenses
shall be reimbursed as they are incurred. Such firm shall be designated in
writing by the Representatives, in the case of parties indemnified pursuant to
Section 8(a), and by the Company, in the case of parties indemnified
pursuant to Section 8(b). The indemnifying party shall not be liable for
any settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff,
the indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the second and third
sentences of this paragraph, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its written
consent if (i) such settlement is entered into more than 30 days after receipt
by such indemnifying party of the aforesaid request and (ii) such indemnifying
party shall not have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement. 
No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a party
and indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding.


 


(d)                                 To
the extent the indemnification provided for in Section 8(a) or 8(b) is
unavailable to an indemnified party or insufficient in respect of any losses,
claims, damages or liabilities referred to therein, then each indemnifying
party under such paragraph, in lieu of indemnifying such indemnified party
thereunder, shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Initial Purchasers on the other hand from the
offering of the Securities or (ii) if the allocation provided by clause 8(d)(i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause 8(d)(i) above
but also the relative fault of the Company on the one hand and of the Initial
Purchasers on the other hand in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Initial Purchasers on the other hand in
connection with the offering of the Securities shall be deemed to be in the
same respective proportions as the net proceeds from the offering of the
Securities (before deducting expenses) received by the Company and the total
discounts and commissions received by the Initial Purchasers, in each case as
set forth in the Memorandum, bear to the aggregate offering price of the
Securities.  The relative fault of the
Company on the one


 


20

















 


hand and of the Initial Purchasers on the
other hand shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
the Company or by the Initial Purchasers and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Initial Purchasers’ respective obligations to
contribute pursuant to this Section 8 are several in proportion to the
respective principal amount of Securities they have purchased hereunder, and
not joint.


 


(e)                                  The
Company and the Initial Purchasers agree that it would not be just or equitable
if contribution pursuant to this Section 8(d) were determined by pro rata
allocation (even if the Initial Purchasers were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in Section 8(d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in Section 8(d) shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 8, no Initial Purchaser shall be required to contribute any amount
in excess of the amount by which the total price at which the Securities resold
by it in the initial placement of such Securities were offered to investors
exceeds the amount of any damages that such Initial Purchaser has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 8 are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.


 


(f)                                    The
indemnity and contribution provisions contained in this Section 8 and the
representations, warranties and other statements of the Company contained in
this Agreement shall remain operative and in full force and effect regardless
of (i) any termination of this Agreement, (ii) any investigation made by or on
behalf of any Initial Purchaser, any person controlling any Initial Purchaser
or any affiliate of any Initial Purchaser or by or on behalf of the Company,
its officers, directors or any person controlling the Company and (iii)
acceptance of and payment for any of the Securities.


 


9.                                       Termination.  The Initial Purchasers may terminate this Agreement
by notice given by you to the Company, if 
after the execution and delivery of this Agreement and prior to the
Closing Date (i) trading generally shall have been suspended or materially
limited on, or by, as the case may be, any of the New York Stock Exchange, the
American Stock Exchange, the Nasdaq National


 


21

















 


Market, the Chicago Board of Options
Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade, (ii)
trading of any securities of the Company shall have been suspended on any
exchange or in any over-the-counter market, (iii) a material disruption in
securities settlement, payment or clearance services in the United States shall
have occurred, (iv) any moratorium on commercial banking activities shall have
been declared by Federal or New York State authorities or (v) there shall have
occurred any outbreak or escalation of hostilities, or any change in financial
markets or any calamity or crisis that, in your judgment, is material and
adverse and which, singly or together with any other event specified in this
clause (v), makes it, in your judgment, impracticable or inadvisable to proceed
with the offer, sale or delivery of the Securities on the terms and in the
manner contemplated in the Memorandum.


 


10.                                 Effectiveness;
Defaulting Initial Purchasers. 
This Agreement shall become effective upon the execution and delivery
hereof by the parties hereto.


 


If, on the Closing Date, or an Option Closing Date, as the case may be,
any one or more of the Initial Purchasers shall fail or refuse to purchase
Securities that it or they have agreed to purchase hereunder on such date, and
the aggregate principal amount of Securities which such defaulting Initial
Purchaser or Initial Purchasers agreed but failed or refused to purchase is not
more than one-tenth of the aggregate principal amount of Securities to be
purchased on such date, the other Initial Purchasers shall be obligated
severally in the proportions that the principal amount of Firm Securities set
forth opposite their respective names in Schedule I bears to the aggregate
principal amount of Firm Securities set forth opposite the names of all such
non-defaulting Initial Purchasers, or in such other proportions as you may
specify, to purchase the Securities which such defaulting Initial Purchaser or
Initial Purchasers agreed but failed or refused to purchase on such date; provided
that in no event shall the principal amount of Securities that any Initial
Purchaser has agreed to purchase pursuant to this Agreement be increased
pursuant to this Section 10 by an amount in excess of one-ninth of such
principal amount of Securities without the written consent of such Initial
Purchaser. If, on the Closing Date any Initial Purchaser or Initial Purchasers
shall fail or refuse to purchase Firm Securities which it or they have agreed
to purchase hereunder on such date and the aggregate principal amount of
Securities with respect to which such default occurs is more than one-tenth of
the aggregate principal amount of Firm Securities to be purchased on such date,
and arrangements satisfactory to you and the Company for the purchase of such
Firm Securities are not made within 36 hours after such default, this Agreement
shall terminate without liability on the part of any non-defaulting Initial
Purchaser or of the Company. In any such case either you or the Company shall
have the right to postpone the Closing Date, but in no event for longer than
seven days, in order that the required changes, if any, in the Memorandum or in
any other documents or arrangements may be effected.  If, on an Option Closing Date, any Initial Purchaser or Initial
Purchasers shall fail or refuse to purchase Additional


 


22

















 


Securities and the aggregate principal amount of Additional Securities
with respect to which such default occurs is more than one-tenth of the
aggregate principal amount of Additional Securities to be purchased on such
Option Closing Date, the non-defaulting Initial Purchasers shall have the
option to (a) terminate their obligation hereunder to purchase the Additional
Securities to be sold on such Option Closing Date or (b) purchase not less than
the principal amount of Additional Securities that such non-defaulting Initial
Purchasers would have been obligated to purchase in the absence of such
default.  Any action taken under this
paragraph shall not relieve any defaulting Initial Purchaser from liability in
respect of any default of such Initial Purchaser under this Agreement.


 


If this Agreement shall be terminated by the Initial Purchasers, or any
of them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, the
Company will reimburse the Initial Purchasers or such Initial Purchasers as
have so terminated this Agreement with respect to themselves, severally, for
all out-of-pocket expenses (including the fees and disbursements of their
counsel) reasonably incurred by such Initial Purchasers in connection with this
Agreement or the offering contemplated hereunder.


 


11.                                 Counterparts.  This Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.


 


12.                                 Applicable
Law.  This Agreement shall be
governed by and construed in accordance with the internal laws of the State of
New York.


 


13.                                 Headings.  The headings of the sections of
this Agreement have been inserted for convenience of reference only and shall
not be deemed a part of this Agreement.


 


23

















 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  COMMSCOPE, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jearld L. Leonhardt

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Jearld L. Leonhardt

  
	
   

  	
   

  	
  Title:

  	
  Executive Vice President

  and Chief Financial Officer

  
					



 

















 


 


	
  Accepted as of the date hereof

  
	
   

  
	
  WACHOVIA CAPITAL MARKETS, LLC

  
	
   

  
	
  MERRILL LYNCH, PIERCE, FENNER &

  SMITH INCORPORATED

  
	
   

  
	
  Acting severally on behalf of themselves
  and the

  several Initial Purchasers named in

  Schedule I hereto.

  
	
   

  	
   

  
	
  By:

  	
  WACHOVIA CAPITAL MARKETS, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Trip Caldwell

  	
   

  
	
   

  	
  Name:

  	
  Trip Caldwell

  
	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  MERRILL LYNCH, PIERCE, FENNER &

  SMITH INCORPORATED

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Geoffrey T. Blythe

  	
   

  
	
   

  	
  Name:

  	
  Geoffrey T. Blythe

  
	
   

  	
  Title:

  	
  Managing Director