Exhibit 4.2
EXECUTION COPY
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REGISTRATION RIGHTS AGREEMENT
Dated as of October 9, 2002
by and between
CommScope, Inc.
and
The Furakawa Electric Co., Ltd.
TABLE OF CONTENTS
PAGE
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1. DEFINITIONS............................................................1
2. REGISTRATION RIGHTS....................................................3
2.1. Demand Registrations..............................................3
2.2. Limitation on Obligations to Effect Demand Registration...........4
2.3. Piggyback Registrations...........................................6
2.4. Allocation of Securities Included in Registration Statement.......7
2.5. Registration Procedures...........................................8
2.6. Expenses.........................................................11
2.7. Underwritten Offerings...........................................11
2.8. Indemnification..................................................11
2.9. Rule 144.........................................................14
2.10. Limitations on Sale or Distribution of Other Securities.........14
2.11. Access to Information...........................................14
2.12. Priority Rights of Holders......................................15
3. GENERAL...............................................................15
3.1. Governing Law....................................................15
3.2. Waiver of Jury Trial.............................................16
3.3. Survival.........................................................16
3.4. Successors and Assigns...........................................16
3.5. Invalidity of Provision..........................................16
3.6. Amendments and Waivers...........................................17
3.7. Notice...........................................................17
3.8. Descriptive Headings.............................................18
3.9. Entire Agreement.................................................18
3.10. Counterparts....................................................18
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REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT"), dated as of
October 9, 2002, by and between CommScope, Inc., a Delaware corporation
(the "COMPANY") and The Furukawa Electric Co., Ltd., a corporation
organized under the laws of Japan ("FURUKAWA") (each a "PARTY" and,
collectively, the "PARTIES").
W I T N E S S E T H :
WHEREAS, the Company and Furukawa are parties to that certain
Stock Purchase Agreement, dated as of October 9, 2002 (the "PURCHASE
AGREEMENT"), pursuant to which Furukawa is purchasing from Lucent
Technologies Inc., ("LUCENT") 7,656,900 shares of Common Stock of the
Company (the "PURCHASED SHARES"), and
WHEREAS, the Company and Furukawa are parties to that certain
Stockholders Agreement, dated as of October 9, 2002 (the "STOCKHOLDERS
AGREEMENT") setting forth their agreement with respect to certain rights
and obligations associated with Furukawa's ownership of the Purchased
Shares.
NOW, THEREFORE, the Parties hereto, in consideration of the
foregoing, the mutual covenants and agreements hereinafter set forth, and
other good and valuable consideration the receipt and sufficiency of which
hereby are acknowledged, agree as follows:
1. DEFINITIONS. As used herein, unless the context otherwise
requires, the following terms have the following respective meanings:
"AFFILIATE" means (i) with respect to any Person, any other
Person directly or indirectly controlling or controlled by or under direct
or indirect common control with such specified Person, or (ii) with respect
to any individual, shall also mean the spouse or child of such individual;
PROVIDED, that neither the Company nor any Person controlled by the Company
shall be deemed to be an Affiliate of any Holder. For the purposes of this
definition, "CONTROL" when used with respect to any specified Person means
the power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract
or otherwise; and the terms "CONTROLLING" and "CONTROLLED" have meanings
correlative to the foregoing.
"COMMISSION" or "SEC" means the Securities and Exchange
Commission.
"COMMON STOCK" means any shares of Common Stock, par value $0.01
per share, of the Company, now or hereafter authorized to be issued, and
any equity securities of any kind which may be issued on or after the date
hereof in respect of, in exchange for, shares of Common Stock in connection
with a merger, consolidation, stock split, stock dividend, recapitalization
or other reorganization.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"HOLDER" means any Person who holds Registrable Securities and is
either (i) Furukawa or (ii) a Person to whom Furukawa has transferred
Registrable Securities, and such Person is bound by the terms of this
Agreement pursuant to Section 3.3.
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"MAJOR HOLDER" means with respect to any registration, the Holder
that, together with its Affiliates, includes the largest number of
Registrable Securities in such registration.
"OFS BRIGHTWAVE PUT" means the right of the Company to sell its
interests in OFS BrightWave LLC to Furukawa or its designees pursuant to
Section 5.6 of the Amended and Restated Memorandum of Understanding by and
between the Company and Furukawa dated as of November 15, 2001 (as amended
by Amendment No. 1 dated as of 9, 2002 to the Amended and Restated
Memorandum of Understanding, the "MOU").
"OFS BRIGHTWAVE, LLC AGREEMENT" means the Amended and Restated
Limited Liability Company Agreement of OFS BrightWave, LLC by and among OFS
BrightWave, LLC, Fitel USA Corp. and CommScope Optical Technologies, Inc.
dated November 16, 2001.
"PERSON" means any individual, corporation, limited liability
company, association, partnership, trust, or any other entity or
organization, including any government entity.
"REGISTRABLE SECURITIES" means (i) the Purchased Shares and (ii)
any shares of Common Stock issued with respect to the Purchased Shares
referred to in clause (i) by way of a stock dividend, stock split or
reverse stock split, or in connection with a combination of shares,
recapitalization, merger, consolidation or otherwise. As to any particular
Registrable Securities, such securities shall cease to be Registrable
Securities (a) when a registration statement with respect to the sale of
such securities shall have become effective under the Securities Act and
such securities shall have been disposed of in accordance with such
registration statement, (b) when such securities shall have been otherwise
transferred, new certificates for them not bearing a legend restricting
further transfer shall have been delivered by the Company and subsequent
public distribution of them shall not require registration of them under
the Securities Act, (c) when such securities are eligible for sale under
Rule 144 under the Securities Act or any successor provision, or (d) when
such securities shall have been sold as permitted by, and in compliance
with, the Securities Act. Notwithstanding anything to the contrary
contained in the Agreement, the Company shall not be required to register
Registrable Securities of any Holder if, in the opinion of counsel to the
Company in substance reasonably satisfactory to such Holder, the sale or
other disposition of such Holder's Registrable Securities in the manner
proposed by such Holder may be effected without registering such
Registrable Securities under the Securities Act.
"REGISTRATION EXPENSES" means all expenses incident to the
registration of the Registrable Securities pursuant to Section 2 hereof,
including, without limitation, all registration, filing and applicable
national securities exchange fees, all fees and expenses of complying with
state securities or blue sky laws, all word processing, duplicating and
printing expenses, all messenger and delivery expenses, the fees and
disbursements of counsel for the Company and of its independent public
accountants, including the expenses of "cold comfort" letters or any
special audits required by, or incident to, such registration, all fees and
disbursements of underwriters (other than underwriting discounts and
commissions), all transfer taxes, and reasonable fees and expenses of not
more than one legal counsel to the Holders; PROVIDED, HOWEVER, that
Registration Expenses shall exclude, and the Holders shall pay, all
underwriting
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discounts and commissions and transfer taxes in respect of the Registrable
Securities being registered.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SELLING HOLDERS" means Holders offering Registrable Securities
for sale pursuant to a registration effected under this Agreement.
"STOCK PURCHASE CLOSING DATE" means the Closing Date as defined
in the Stock Purchase Agreement.
2. REGISTRATION RIGHTS.
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2.1. DEMAND REGISTRATIONS.
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(a) (i) Subject to Sections 2.2 and 2.4 below, at any time and
from time to time after the earlier of: (w) the date on which the Company
consummates a Change in Control Transaction (as defined in the Stockholders
Agreement), (x) March 16, 2006, (y) the date on which the Company delivers
written notice of exercise of the OFS BrightWave Put pursuant to Section
5.6 of the MOU or (z) the date on which the Company or its Subsidiaries
completes a Direct Transfer (as defined in the OFS BrightWave, LLC
Agreement) of all its Membership Interests (as defined in the OFS
BrightWave, LLC Agreement), any Holder shall have the right to request that
the Company effect a registration under the Securities Act of all of such
Holder's Registrable Securities, or any part of such Holder's Registrable
Securities. Any such request for registration by any Holder pursuant to
this Section 2.1 shall hereinafter be referred to as a "DEMAND REGISTRATION
REQUEST," and the registrations so requested are referred to herein as
"DEMAND REGISTRATIONS" (with respect to any Demand Registration, the
Holder(s) making such demands for registration being referred to as the
"INITIATING HOLDER"). Each Demand Registration Request shall be delivered
in writing to the Company and shall specify the aggregate amount of
Registrable Securities to be included in such registration by the Company
and the intended method of distribution thereof.
(ii) After receiving a Demand Registration Request, the
Company shall, as promptly as practicable, file a registration statement
relating to such Registrable Securities for distribution in accordance with
such intended method of distribution, and use its reasonable best efforts
to cause such registration statement to be declared effective under the
Securities Act.
(b) The Company, subject to Sections 2.2 and 2.4, may elect to
include in any registration statement and offering made pursuant to this
Section 2.1 (i) shares of Common Stock held by the Company as treasury
shares, and (ii) any other shares of Common Stock which are requested to be
included in such registration pursuant to the exercise of piggyback
registration rights granted by the Company.
(c) A Holder may withdraw its request to include Registrable
Securities in a Demand Registration at any time prior to the related
registration statement's being declared effective by giving written notice
to the Company of its intent to withdraw; PROVIDED that such
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Holder shall not be deemed to have made a Demand Registration, if such
Holder pays any expense or liability incurred by the Company or any other
Holder in connection with or arising from such request.
(d) A registration of Registrable Securities shall not constitute
a Demand Registration until a registration statement with respect to such
Registrable Securities shall have become effective.
2.2. LIMITATION ON OBLIGATIONS TO EFFECT DEMAND REGISTRATION.
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(a) The Demand Registration rights granted to Holders in Section
2.1 are subject to the following limitations:
(i) the Company shall not be required to effect more than
four (4) Demand Registrations;
(ii) the Company shall not be required to effect more than
two (2) Demand Registrations in any one-year period;
(iii) the Company shall not be required to effect a Demand
Registration Request if the number of Registrable Securities requested to
be included does not exceed 4% of the Common Stock then outstanding or, if
such number of Registrable Securities is less than 4% of the Common Stock
then outstanding, the number of Registrable Securities requested to be
included is less than all of the Registrable Securities held by the
Initiating Holder.
(iv) the Company shall not be required to cause a
registration pursuant to Section 2.1(a) to be declared effective within a
period of 180 days after the effective date of any registration statement
of the Company other than a registration statement on Form S-8 (or an
equivalent registration form then in effect); and
(v) if the Board of Directors of the Company, in its
reasonable business judgment, determines that any registration of
Registrable Securities should not be made or continued (the "BOARD
DECISION") because it would interfere with any material financing,
acquisition, corporate reorganization or merger, other transaction or
material event involving the Company or any of its subsidiaries or result
in premature disclosure thereof (a "VALID BUSINESS REASON"), (x) the
Company may postpone filing a registration statement relating to a Demand
Registration until such Valid Business Reason no longer exists, but in no
event for more than ninety (90) days from the date of the Board Decision,
and (y) in case a registration statement has been filed relating to a
Demand Registration, the Company may cause such registration statement to
be withdrawn and its effectiveness terminated or may postpone amending or
supplementing such registration statement until such Valid Business Reason
no longer exists, but in no event for more than ninety (90) days from the
date of the Board Decision (such period of postponement or withdrawal under
subclauses (x) or (y) of this clause (v), the "POSTPONEMENT PERIOD"); and
the Company shall give written notice of its determination to postpone or
withdraw a registration statement, and of the fact that the Valid Business
Reason for such postponement or withdrawal no longer exists, in each case,
promptly after the occurrence thereof; PROVIDED, HOWEVER, the
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Company shall not be permitted to postpone or withdraw a registration
statement after the expiration of any Postponement Period until twelve
months after the expiration of such Postponement Period without the prior
written approval of the Initiating Holder of such Demand Registration.
(b) If the Company shall give any notice of postponement or
withdrawal of any registration statement, the Company shall not, during the
period of postponement or withdrawal, register any Company Securities,
other than pursuant to a registration statement on Form S-4 or S-8 (or an
equivalent registration form then in effect). Each Holder of Registrable
Securities agrees that, upon receipt of any notice from the Company that
the Company has determined to withdraw any registration statement pursuant
to clause 2.2(a)(v) above, such Holder will discontinue its disposition of
Registrable Securities pursuant to such registration statement and, if so
directed by the Company, will deliver to the Company all copies, other than
permanent file copies, then in such Holder's possession of the prospectus
covering such Registrable Securities that was in effect at the time of
receipt of such notice. If the Company shall have withdrawn or prematurely
terminated a registration statement filed under Section 2.1 (whether
pursuant to clause 2.2(a)(v) above or as a result of any stop order,
injunction or other order or requirement of the Commission or any other
governmental agency or court), the Company shall not be considered to have
effected an effective registration for the purposes of this Agreement until
the Company shall have filed a new registration statement covering the
Registrable Securities covered by the withdrawn registration statement and
such registration statement shall have been declared effective and shall
not have been withdrawn. If the Company shall give any notice of withdrawal
or postponement of a registration statement, the Company shall file the
applicable registration statement as soon as practicable after the Board of
Directors of the Company determines, in its reasonable business judgment,
that such Valid Business Reason no longer exists (but in no event later
than ninety (90) days after the date of the postponement or withdrawal) and
use its reasonable best efforts to effect the registration under the
Securities Act of the Registrable Securities covered by the withdrawn or
postponed registration statement in accordance with this Section 2.2
(unless the Holder shall have withdrawn its Demand Registration Request, in
which case the Company shall not be considered to have effected an
effective registration for the purposes of this Agreement, such request
shall not be counted for purposes of the Demand Registration Requests to
which the Initiating Holders are entitled pursuant to Section 2.1 and the
Company shall pay all Registration Expenses in connection therewith).
(c) In the event that any Demand Registration shall involve, in
whole or in part, an underwritten offering, the Major Holder shall select
the managing underwriter or underwriters in connection with such
registration, which underwriter(s) shall be of national standing and shall
be reasonably acceptable to the Company.
(d) Demand Registrations pursuant to Section 2.1 shall be on an
appropriate form of the SEC selected by the Company.
(e) Holders may not request, and the Company shall not be
obligated, to effect an offering on a delayed or continuous basis pursuant
to Rule 415 (or any successor rule to similar effect) under the Securities
Act.
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2.3. PIGGYBACK REGISTRATIONS.
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(a) If, at any time, the Company proposes or is required to
register any of its Common Stock under the Securities Act (other than
pursuant to registrations on such form or similar form(s) solely for
registration of securities in connection with an employee benefit plan,
dividend reinvestment plan, or a merger or consolidation or other than
incidental to an issuance of securities intended to be resold under Rule
144A of the Securities Act) on a registration statement on Form S-1, Form
S-2, or Form S-3 (or an equivalent general registration form then in
effect), whether or not for its own account, the Company shall give prompt
written notice of its intention to do so to each of the Holders of record
of Registrable Securities. Upon the written request of any such Holder,
made within twenty (20) days following the receipt of any such written
notice (which request shall specify the maximum number of Registrable
Securities intended to be disposed of by such Holder and the intended
method of distribution thereof), the Company shall, subject to Sections
2.3(b), 2.4, 2.7(b), and 2.8 hereof, include in such filing the Registrable
Securities for which registration is requested by any such Holder and shall
use its reasonable best efforts to cause all such Registrable Securities,
the Holders of which have so requested the registration thereof, to be
registered under the Securities Act on the same terms and conditions as any
Common Stock which the Company at the time proposes to register to permit
the sale or other disposition by the Holders (in accordance with the
intended method of distribution thereof) of the Registrable Securities to
be so registered (each, a "PIGGYBACK REGISTRATION"). There is no limitation
on the number of such Piggyback Registrations pursuant to the preceding
sentence which the Company is obligated to effect. No registration effected
under this Section 2.3(a) shall relieve the Company of its obligations to
effect a Demand Registration.
(b) If, at any time after giving written notice of its intention
to register any Common Stock and prior to the effective date of the
registration statement filed in connection with such registration, the
Company shall determine for any reason not to register or to delay
registration of such Common Stock, the Company may, at its election, give
written notice of such determination to all Holders of record of
Registrable Securities and (i) in the case of a determination not to
register, shall be relieved of its obligation to register any Registrable
Securities in connection with such abandoned registration, without
prejudice, however, to the rights of Holders under Section 2.1 or Section
2.6, and (ii) in the case of a determination to delay such registration of
its equity securities, shall be permitted to delay the registration of such
Registrable Securities for the same period as the delay in registering such
other Common Stock.
(c) Any Holder shall have the right to withdraw its request for
inclusion of its Registrable Securities in any registration statement
pursuant to this Section 2.3 by giving written notice to the Company of its
request to withdraw; PROVIDED, HOWEVER, that (i) such request must be made
in writing prior to the effective date of such registration statement, and
(ii) such withdrawal shall be irrevocable and, after making such
withdrawal, a Holder shall no longer have any right to include Registrable
Securities in the registration as to which such withdrawal was made.
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2.4. ALLOCATION OF SECURITIES INCLUDED IN REGISTRATION STATEMENT.
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(a) If any requested registration pursuant to Section 2.1
involves an underwritten offering and the lead managing underwriter of such
offering (the "MANAGER") shall advise the Company in writing that, in its
view, the number of securities requested to be included in such
registration by the Holders or any other persons (including those shares of
Common Stock requested by the Company to be included in such registration)
exceeds the largest number (the "DEMAND SALE NUMBER") that can be sold in
an orderly manner in such offering within a price range acceptable to the
Initiating Holder, the Company shall include in such registration:
(i) FIRST, all Registrable Securities requested to be
included in such registration by Holders of Registrable Securities;
PROVIDED, HOWEVER, that, if the number of such Registrable Securities
exceeds the Demand Sale Number, the number of such Registrable Securities
(not to exceed the Demand Sale Number) to be included in such registration
shall be allocated on a PRO RATA basis among all Holders requesting that
Registrable Securities be included in such registration statement, based on
the number of Registrable Securities then owned by each Holder requesting
inclusion in relation to the number of Registrable Securities owned by all
Holders requesting inclusion;
(ii) SECOND, to the extent that the number of Registrable
Securities to be included by all Holders pursuant to clause (i) of this
Section 2.4(a) is less than the Demand Sale Number and in accordance with
Section 2.1(b), securities that the Company proposes to register; and
(iii) THIRD, to the extent that the number of Registrable
Securities to be included by all Holders plus the number of securities to
be included by the Company is less than the Demand Sale Number and in
accordance with Section 2.1(b), any other securities other than Registrable
Securities that the holders thereof propose to register pursuant to the
exercise of piggyback registration rights.
If, as a result of the proration provisions of this Section
2.4(a), any Holder shall not be entitled to include all Registrable
Securities in a registration that such Holder has requested be included,
such Holder may elect to withdraw his request to include Registrable
Securities in such registration or may reduce the number requested to be
included; PROVIDED, HOWEVER, that (x) such request must be made in writing
prior to the earlier of the execution of the underwriting agreement or the
execution of the custody agreement with respect to such registration, and
(y) such withdrawal shall be irrevocable and, after making such withdrawal,
a Holder shall no longer have any right to include Registrable Securities
in the registration as to which such withdrawal was made; PROVIDED,
HOWEVER, that in the event that the Manager subsequently advises the
Company in writing that a larger number of securities may be sold in an
orderly manner in such offering within a price range acceptable to the
Initiating Holder, such withdrawal may be revoked.
(b) If any registration pursuant to Section 2.3 involves an
underwritten offering and the Manager shall advise the Company in writing
that, in its view, the number of securities requested to be included in
such registration exceeds the number (the "SECTION 2.3 SALE
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NUMBER") that can be sold in an orderly manner in such registration within
a price range acceptable to the Company, the Company shall include in such
registration:
(i) FIRST, all Common Stock, or securities convertible into
or exchangeable or exercisable for, Common Stock (the "COMPANY SECURITIES")
that the Company proposes to register for its own account;
(ii) SECOND, to the extent that the number of Company
Securities to be included pursuant to clause (i) of this Section 2.4(b) is
less than the Section 2.3 Sale Number, all Registrable Securities requested
to be included by all Holders, allocated on a PRO RATA basis based on the
number of shares of Registrable Securities subject to registration rights
owned by each Holder requesting inclusion in relation to the number of
shares of Registrable Securities subject to registration rights then owned
by all Holders requesting inclusion; and
(iii) THIRD, to the extent that the number of Company
Securities, Registrable Securities and other securities to be included
pursuant to clause (ii) of this Section 2.4(b) is less than the Section 2.3
Sale Number, any other securities other than Registrable Securities that
the holders thereof propose to register pursuant to the exercise of
piggyback registration rights.
2.5. REGISTRATION PROCEDURES.
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If and whenever the Company is required by the provisions of this
Agreement to use its reasonable best efforts to effect or cause the
registration of any Registrable Securities under the Securities Act as
provided in this Agreement, the Company shall:
(a) prepare and file with the Commission a registration statement
on an appropriate registration form of the Commission (and such amendments
and post-effective amendments and supplements to such registration
statement as may be required by the Securities Act) for the disposition of
such Registrable Securities in accordance with the intended method of
disposition thereof, which form shall be selected by the Company and comply
as to form in all material respects with the requirements of the applicable
form, and the Company shall use its reasonable best efforts to cause such
registration statement to become and remain effective, PROVIDED, HOWEVER,
that before filing a registration statement or prospectus or any amendments
or supplements thereto, or comparable statements under securities or blue
sky laws of any jurisdiction, the Company will furnish to one counsel for
the Holders participating in the planned offering (selected by the
Initiating Holder, in the case of a registration pursuant to Sections 2.1,
and selected by the Major Holder, in the case of a registration pursuant to
Section 2.3) and the underwriters, if any, copies of all such documents
proposed to be filed (including all exhibits thereto), which documents will
be subject to the reasonable review and reasonable comment of such counsel;
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective for a period of time as necessary to complete the
offering, which period shall be not less than 90 days (or such shorter
period that
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shall terminate when all Registrable Securities covered by such
registration statement have been sold or withdrawn, but not prior to the
expiration of the time period referred to in Section 4(3) of the Securities
Act and Rule 174 thereunder, if applicable) and comply with the provisions
of the Securities Act with respect to the disposition of all securities
covered by such registration statement during such period in accordance
with the intended methods of disposition set forth in such registration
statement;
(c) furnish, without charge, to each Selling Holder of such
Registrable Securities and each underwriter, if any, of the securities
covered by such registration statement such number of copies of such
registration statement, each amendment and supplement thereto (in each case
including all exhibits), and the prospectus included in such registration
statement (including each preliminary prospectus) in conformity with the
requirements of the Securities Act, and other documents, as such Selling
Holder and underwriter may reasonably request in order to facilitate the
public sale or other disposition of the Registrable Securities owned by
such Selling Holder;
(d) use its reasonable best efforts to register or qualify the
Registrable Securities covered by such registration statement under such
other securities or "blue sky" laws of such jurisdictions as any Selling
Holders or any managing underwriter, if any, shall reasonably request,
PROVIDED that in no event shall the Company be required to qualify to do
business as a foreign corporation in any jurisdiction where it would not,
but for the requirements of this paragraph (d), be required to be so
qualified, to subject itself to taxation in any such jurisdiction or to
consent to general service of process in any such jurisdiction;
(e) promptly notify each Selling Holder covered by such
registration statement and each managing underwriter, if any: (i) when the
registration statement, any pre-effective amendment, the prospectus or any
prospectus supplement related thereto or post-effective amendment to the
registration statement has been filed and, with respect to the registration
statement or any post-effective amendment, when the same has become
effective; (ii) of any request by the Commission or state securities
authority for amendments or supplements to the registration statement or
the prospectus related thereto or for additional information; (iii) of the
issuance by the Commission of any stop order suspending the effectiveness
of the registration statement or the initiation of any proceedings for that
purpose; and (iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification of any Registrable
Securities for sale under the securities or blue sky laws of any
jurisdiction or the initiation of any proceeding for such purpose;
(f) promptly notify each Selling Holder selling Registrable
Securities covered by such prospectus and each managing underwriter, if
any, at any time when a prospectus relating to the Registrable Securities
is required to be delivered under the Securities Act, upon discovery that,
or upon the occurrence of any event as a result of which, the prospectus
included in such registration statement contains an untrue statement of a
material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein not misleading in light
of the circumstances under which they were made, and the Company shall
promptly prepare a supplement or amendment to such prospectus and furnish
to each such
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Selling Holder a reasonable number of copies of a supplement to or an
amendment of such prospectus as may be necessary so that, after delivery to
the purchasers of such Registrable Securities, such prospectus shall not
contain an untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances under which
they were made;
(g) otherwise use its reasonable best efforts to obtain a "cold
comfort" letter or letters from the Company's independent public
accountants in customary form and covering such matters of the type
customarily covered by "cold comfort" letters as counsel for each Selling
Holder or the managing underwriter, if any, reasonably request;
(h) otherwise use its reasonable best efforts to furnish, at the
request of each Selling Holder, on the date such Registrable Securities are
delivered to the underwriters for sale pursuant to such registration or, if
such Registrable Securities are not being sold through underwriters on the
date the registration statement with respect to such Registrable Securities
becomes effective, an opinion, dated as of such date, of counsel
representing the Company for the purposes of such registration, addressed
to the underwriters, if any, and to each Selling Holder, covering such
legal matters with respect to the registration as each Selling Holder may
reasonably request and are customarily included in such opinions.
(i) use its reasonable best efforts to obtain the withdrawal of
any SEC order suspending the effectiveness of the registration statement;
(j) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the Commission;
(k) cause all such Registrable Securities to be listed on each
securities exchange or interdealer quotation systems, if any, on which
other securities of the same class issued by the Company are then listed
(subject to notice of issuance), PROVIDED, that the applicable listing
requirements are satisfied; and
(l) cooperate with the Selling Holders and the managing
underwriter, if any, to facilitate the timely preparation and delivery of
certificates not bearing any restrictive legends representing the
Registrable Securities to be sold, and cause such Registrable Securities to
be issued in such denominations and registered in such names in accordance
with the underwriting agreement prior to any sale of Registrable Securities
to the underwriters or, if not an underwritten offering, in accordance with
the instructions of the Selling Holders.
The Company may require as a condition precedent to the Company's
obligations under this Section 2.5 that each Selling Holder as to which any
registration is being effected furnish the Company such information
regarding such Selling Holder and the distribution of such securities as
the Company may, from time to time, reasonably request to consummate such
registration.
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2.6. EXPENSES. The Company shall pay all Registration Expenses in
connection with any registration requested pursuant to this Section 2.
Notwithstanding the foregoing, if a Holder (i) withdraws its Demand
Registration Request under Section 2.1(c), or (ii) withdraws its request
for a Piggyback Registration pursuant to 2.3(c), then in either case such
withdrawing Holder shall pay a portion of the Registration Expenses
pro-rated in accordance with the number of such Holder's Registrable
Securities included in such withdrawn request.
2.7. UNDERWRITTEN OFFERINGS.
----------------------
(a) REQUESTED UNDERWRITTEN OFFERINGS. If requested by the
underwriters for any underwritten offering by the Initiating Holders
pursuant to a registration requested under Section 2.1, the Company shall
enter into a customary underwriting agreement with the managing
underwriter. Such underwriting agreement shall contain such representations
and warranties by, and such other agreements on the part of, the Company
and such other terms and provisions as are customarily contained in
underwriting agreements with respect to secondary distributions, including,
without limitation, provisions relating to indemnification and
contribution. The Holders on whose behalf the Registrable Securities are to
be distributed by such underwriters shall be parties to such underwriting
agreement and may, at their option, require that any or all of the
representations and warranties by, and the other agreements on the part of,
the Company to and for the benefit of such underwriters shall also be made
to and for the benefit of such Holders.
(b) PIGGYBACK UNDERWRITTEN OFFERINGS. In the case of a
registration pursuant to Section 2.3 hereof, if the Company shall have
determined to enter into any underwriting agreements in connection
therewith, all of the Registrable Securities to be included in such
registration shall be subject to such underwriting agreements. The Holders
may, at their option, require that any or all of the representations and
warranties by, and the other agreements on the part of, the Company to and
for the benefit of such underwriters shall also be made to and for the
benefit of the Holders.
2.8. INDEMNIFICATION.
---------------
(a) INDEMNIFICATION BY THE COMPANY. The Company agrees that in
the event of any registration of any Registrable Securities of the Company
under the Securities Act, the Company shall, and hereby does, indemnify and
hold harmless the Holders, their respective directors, officers, members,
partners, agents and Affiliates and each other Person who participates as
an underwriter in the offering or sale of such securities and each other
Person, if any, who controls the Holders or any such underwriter within the
meaning of the Securities Act (collectively, "Company Indemnitees"),
against any losses, claims, damages, or liabilities, joint or several, to
which the Holders or any such director, officer, member, partner, agent or
Affiliate or underwriter or controlling person may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities, joint or several (or actions or proceedings, whether commenced
or threatened, in respect thereof), arise out of or are based upon (i) any
untrue statement or alleged untrue statement of any material fact contained
in any registration statement under which such Registrable Securities were
registered under the Securities Act, any preliminary prospectus, final
prospectus or summary prospectus contained therein, or any
11
amendment or supplement thereto, (ii) any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein in light of the circumstances in which they
were made not misleading and the Company shall reimburse the Company
Indemnitees for any legal or any other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim,
liability, action or proceeding, or (iii) any violation by the Company of
the Securities Act or Exchange Act; PROVIDED, that the Company shall not be
liable in any such case to the Company Indemnitees to the extent that any
such loss, claim, damage, liability (or action or proceeding in respect
thereof) or expense arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in such
registration statement, any such preliminary prospectus, final prospectus,
summary prospectus, amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by or on
behalf of the Holders, specifically for inclusion therein.
(b) INDEMNIFICATION BY THE HOLDERS. As a condition to including
any Registrable Securities in any registration statement, the Company shall
have received an undertaking reasonably satisfactory to it from each Holder
so including any Registrable Securities to severally, but not jointly
indemnify and hold harmless (in the same manner and to the same extent as
set forth in paragraph (a) of this Section 2.8) the Company, and each
director of the Company, each officer of the Company and each other Person,
if any, who controls the Company within the meaning of the Securities Act
(collectively "Holder Indemnitees"), with respect to any statement or
alleged statement in or omission or alleged omission from such registration
statement, any preliminary prospectus, final prospectus or summary
prospectus contained therein, or any amendment or supplement thereto, but
only to the extent such statement or alleged statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to the Company by the Holders specifically for
inclusion in such registration statement, preliminary prospectus, final
prospectus, summary prospectus, amendment or supplement. Notwithstanding
the provisions of this Section 2.8(b) or Section 2.8(d), no Holder shall be
required to indemnify any Holder Indemnitee pursuant to this Section 2.8(b)
or to contribute pursuant to Section 2.8(d) in an amount in excess of the
amount of the net proceeds received by such Holder in connection with any
such registration under the Securities Act.
(c) NOTICES OF CLAIMS, ETC. Promptly after receipt by an
indemnified party of notice of the commencement of any action or proceeding
involving a claim referred to in the preceding subsections of this Section
2.8, such indemnified party shall, if a claim in respect thereof is to be
made against an indemnifying party, give written notice to the latter of
the commencement of such action or proceeding; PROVIDED, HOWEVER, that the
failure of any indemnified party to give notice as provided herein shall
not relieve the indemnifying party of its obligations under the preceding
subsections of this Section 2.8, except to the extent that the indemnifying
party is actually prejudiced by such failure to give notice, and shall not
relieve the indemnifying party from any liability which it may have to the
indemnified party otherwise than under this Section 2.8. In case any such
action or proceeding is brought against an indemnified party, the
indemnifying party shall be entitled to participate therein and, unless in
the opinion of outside counsel to the indemnified party a conflict of
interest between such indemnified and indemnifying parties may exist in
respect of such claim, to assume the defense thereof, jointly
12
with any other indemnifying party similarly notified to the extent that it
may wish, with counsel reasonably satisfactory to such indemnified party;
PROVIDED, HOWEVER, that if the defendants in any such action or proceeding
include both the indemnified party and the indemnifying party and if in the
opinion of outside counsel to the indemnified party there may be legal
defenses available to such indemnified party and/or other indemnified
parties which are different from or in addition to those available to the
indemnifying party, the indemnified party or parties shall have the right
to select separate counsel to defend such action or proceeding on behalf of
such indemnified party or parties, PROVIDED, HOWEVER, that the indemnifying
party shall be obligated to pay for only one counsel for all indemnified
parties. After notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof and approval by the
indemnified party of such counsel, the indemnifying party shall not be
liable to such indemnified party for any legal expenses subsequently
incurred by the latter in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall be liable
for any settlement of any action or proceeding effected without its written
consent. No indemnifying party shall, without the consent of the
indemnified party, consent to entry of any judgment or enter into any
settlement which (i) commits the indemnified party to take, or forebear to
take, any action, (ii) does not include as an unconditional term thereof
the giving by the claimant or plaintiff to such indemnified party of a
release from all liability in respect to such claim or litigation, or (iii)
does not relate solely to monetary damages.
(d) CONTRIBUTION. If the indemnification provided for in this
Section 2.8 shall for any reason be held by a court to be unavailable to an
indemnified party under subsection (a) or (b) hereof in respect of any
loss, claim, damage or liability, or any action in respect thereof, then,
in lieu of the amount paid or payable under subsection (a) or (b) hereof,
the indemnified party and the indemnifying party under subsection (a) or
(b) hereof shall contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in
connection with investigating the same), (i) in such proportion as is
appropriate to reflect the relative fault of the indemnifying party on the
one hand, and the indemnified party on the other, which resulted in such
loss, claim, damage or liability, or action in respect thereof, with
respect to the statements or omissions which resulted in such loss, claim,
damage or liability, or action in respect thereof, as well as any other
relevant equitable considerations, or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law or if the allocation
provided in this clause (ii) provides a greater amount to the indemnified
party than clause (i) above, in such proportion as shall be appropriate to
reflect not only the relative fault but also the relative benefits received
by the indemnifying party and the indemnified party from the offering of
the securities covered by such registration statement as well as any other
relevant equitable considerations. The Parties hereto agree that it would
not be just and equitable if contributions pursuant to this Section 2.8(d)
were to be determined by pro rata allocation or by any other method of
allocation which does not take into account the equitable considerations
referred to in the preceding sentence of this Section 2.8(d). 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. In addition, no
Person shall be obligated to contribute hereunder any amounts in payment
for any settlement of any action or claim effected without such Person's
consent, which consent shall not be unreasonably withheld. Notwithstanding
the foregoing, if any Holder is the indemnifying
13
party, any contribution pursuant to this Section 2.8(d) shall be limited to
the amount of net proceeds received by such Holder from the sale of
Registrable Securities in connection with the applicable registration.
(e) OTHER INDEMNIFICATION. Indemnification and contribution
similar to that specified in the preceding subsections of this Section 2.8
(with appropriate modifications) shall be given by the Company and the
Holders with respect to any required registration or other qualification of
securities under any federal, state or blue sky law or regulation of any
governmental authority other than the Securities Act. The indemnification
agreements contained in this Section 2.8 shall be in addition to any other
rights to indemnification or contribution which any indemnified party may
have pursuant to law or contract.
2.9. RULE 144. With a view to making available to Holders the benefits
of certain rules and regulations of the Commission which may permit the
sale of the Registrable Securities to the public without registration, the
Company agrees to use its reasonable best efforts to:
(a) Make and keep public information available, as those terms
are understood and defined in Commission Rule 144 or any similar or
analogous rule promulgated under the Securities Act; and
(b) File with the Commission, in a timely manner, all reports and
other documents required of the Company under the Exchange Act and any
rules or regulations promulgated thereunder.
2.10. LIMITATIONS ON SALE OR DISTRIBUTION OF OTHER SECURITIES. If
requested in writing by the managing underwriter(s), if any, of any
registration effected pursuant to Section 2.1 or 2.3, each Holder of
Registrable Securities agrees not to effect any public sale or
distribution, including, without limitation, any sale pursuant to Rule 144
under the Securities Act, of any Registrable Securities, or any other
equity security of the Company or any security convertible into or
exchangeable or exercisable for any equity security of the Company (other
than as part of such underwritten public offering) during the time period
reasonably requested by the managing underwriters(s), if any.
2.11. ACCESS TO INFORMATION. So long as Furukawa and its Affiliates
collectively hold at least 5% of the outstanding shares of the Company's
Common Stock, the Company shall furnish to Furukawa such financial and
operating information with respect to the business and properties of the
Company as Furukawa shall reasonably request. The Company's costs and
expenses of providing such information shall be promptly reimbursed by
Furukawa upon request. Notwithstanding the foregoing, the Company shall not
be obligated to, and shall not, furnish access to any information which the
Company, in its reasonable judgment, believes (i) to be a trade secret or
competitively sensitive information; (ii) would breach a then existing
confidentiality agreement between the Company and a third party; (iii) if
any law, treaty, rule or regulation of any court or administrative agency
restricts such access; or (iv) the disclosure of such information would
have a material adverse effect on the Company or its subsidiaries. Furukawa
acknowledges and agrees that Furukawa will have access to material,
nonpublic
14
information concerning the Company, therefore, Furukawa agrees that it will
not, nor cause another person to, enter into any agreement, contract,
right, or obligation, to buy, sell or trade any securities of the Company
based on any information provided to it hereunder which is not publicly
available, or provide such nonpublic information to any person under
circumstances in which it is reasonably foreseeable that such person may
purchase, sell or trade such securities resulting in a violation of the
Exchange Act, Securities Act or any other applicable law. Furukawa agrees,
and agrees to cause its Affiliates and their respective directors,
officers, employees, agents or representatives (collectively,
"REPRESENTATIVES") to maintain the confidentiality of, and not disclose,
any nonpublic information (whether oral, in writing or in any other form)
furnished by the Company, or on behalf of the Company, to Furukawa pursuant
to this Section 2.11 ("CONFIDENTIAL INFORMATION"); PROVIDED, HOWEVER, such
Confidential Information does not include information which (i) is or
becomes generally available to the public other than as a result of a
disclosure by Furukawa or any of its respective Affiliates or
Representatives, or (ii) was or becomes available to Furukawa or any of its
respective Affiliates or Representatives on a non-confidential basis from a
source other than the Company or its Affiliates or its Representatives,
provided such source is not bound by a confidentiality agreement with the
Company or its Affiliates or Representatives or otherwise prohibited from
transmitting the Confidential Information by a contractual, legal or
fiduciary obligation. In the event that Furukawa is requested or required
(by oral questions, interrogatories, requests for information or documents,
subpoena, civil investigative demand or similar process) to disclose any
Confidential Information, it is agreed that Furukawa will provide the
Company with prompt notice of each such request so that the Company may
seek an appropriate protective order or other appropriate remedy, or both,
or waive Furukawa's compliance with this Section 2.11. It is further agreed
that, if in the absence of a protective order or the receipt of a waiver of
this Section 2.11, Furukawa is nonetheless, in the opinion of its counsel,
compelled to disclose information concerning the Company to any tribunal or
else stand liable for contempt or suffer other censure or penalty, Furukawa
may furnish only that portion of the Confidential Information which it is
advised by its counsel is legally required to be furnished and shall
exercise its reasonable commercial efforts to obtain reliable assurance
that confidential treatment will be accorded such Confidential Information.
The rights set forth in this Section 2.11, are solely for the benefit of
Furukawa and cannot be transferred or assigned to any person without the
prior written consent of the Company, such consent not to be unreasonably
withheld.
2.12. PRIORITY RIGHTS OF HOLDERS. The Company hereby agrees not to
enter into any agreement for registration, sale or distribution of any
Company Securities with terms preferential to the terms set forth in
Section 2.4 of this Agreement with respect to each Holder.
3. GENERAL
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3.1. GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with, and the rights and obligations of the Parties hereto shall
be governed by, the laws of the State of New York, without giving effect to
the conflicts of law principles thereof. Each of the Parties hereto hereby
irrevocably and unconditionally consents to submit to the exclusive
jurisdiction of the United States District Court for the Southern District
of New York for any action or proceeding arising out of or relating to this
Agreement and the transactions contemplated hereby (and agrees not to
commence any action or proceeding relating thereto
15
except in such courts), and further agrees that service of any process,
summons, notice or document by U.S. registered mail to its respective
address set forth in Section 3.7 hereof shall be effective service of
process for any action or proceeding brought against it in any such court.
Each of the Parties hereto hereby irrevocably and unconditionally waives
any objection to the laying of venue of any action or proceeding arising
out of this Agreement or the transactions contemplated hereby in the United
States District Court for the Southern District of New York, and hereby
further irrevocably and unconditionally waives and agrees not to plead or
claim in any such court that any such action or proceeding brought in any
such court has been brought in an inconvenient forum.
3.2. WAIVER OF JURY TRIAL. Each of the parties hereto hereby waives to
the fullest extent permitted by applicable law, any right it may have to a
trial by jury in respect of any litigation directly or indirectly arising
out of, under or in connection with this Agreement. Each of the parties
hereto (a) certifies that no representative of any other party has
represented, expressly or otherwise, that such other party would not, in
the event of litigation, seek to enforce the foregoing waiver and (b)
acknowledges that it and the other parties hereto have been induced to
enter into this Agreement by, among other things, the mutual waivers and
certifications in this Section 3.2.
3.3. SURVIVAL. The provisions of Section 2.8 hereof shall survive any
termination of this Agreement.
3.4. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the Parties hereto and the
respective successors, personal representatives and assigns of the Parties
hereto, whether so expressed or not. If any Person shall acquire
Registrable Securities from any Holder, in any manner, whether by operation
of law or otherwise, such transferee shall promptly notify the Company, and
such Registrable Securities acquired from such Holder shall be held subject
to all of the terms of this Agreement. By taking and holding such acquired
Registrable Securities, such Person shall be entitled to receive the
benefits of and be conclusively deemed to have agreed to be bound by and to
perform all of the terms and provisions of this Agreement. If the Company
shall so request, any such successor or assign shall agree in writing to
acquire and hold the Registrable Securities acquired from such Holder
subject to all of the terms hereof. If any Holder shall acquire additional
Registrable Securities, such Registrable Securities shall be subject to all
of the terms, and entitled to all the benefits, of this Agreement.
3.5. INVALIDITY OF PROVISION. The invalidity or unenforceability of
any provision of this Agreement in any jurisdiction shall not affect the
validity or enforceability of the remainder of this Agreement in that
jurisdiction or the validity or enforceability of this Agreement, including
that provision, in any other jurisdiction. If any restriction or provision
of this Agreement is held unreasonable, unlawful or unenforceable in any
respect, such restriction or provision shall be interpreted, revised or
applied in a manner that renders it lawful and enforceable to the fullest
extent possible under law.
16
3.6. AMENDMENTS AND WAIVERS. This Agreement may be amended, modified
or supplemented only by written agreement of the Party against whom
enforcement of such amendment, modification or supplement is sought.
3.7. NOTICE. Any notice, consent, waiver or demand pursuant to or in
connection with this Agreement must be in writing and will be deemed to be
delivered when personally delivered or when actually received by facsimile
transmission, overnight courier of national reputation or United States
mail, at the address or facsimile number stated below (or at such other
address or facsimile number as such party may designate by written notice
to all other parties), with copies sent to the persons indicated:
(a) If to CommScope, to:
CommScope, Inc.
1100 CommScope Place SE,
Hickory, North Carolina 28602
Attention: Frank B. Wyatt, II
Facsimile: (828) 431-2520
With a copy to:
Fried, Frank, Harris, Shriver & Jacobson
One New York Plaza
New York, New York, 10004
Attention: Christopher Ewan
Facsimile: (212) 859-8588
(b) If to Furukawa, to:
The Furukawa Electric Co., Ltd.
6-1, Marunouchi 2-chome
Chiyoda-Ku
Tokyo 100-8322
Attention: Hiromasa Ogawa
General Manager, Legal
and General Affairs Department
Facsimile: 011-81-3-3286-3919
With a copy to:
Masuda & Ejiri
399 Park Avenue, 18th Floor
New York, New York 10022
Attention: Junji Masuda
Facsimile: (212) 486-2614
17
3.8. DESCRIPTIVE HEADINGS. The descriptive headings of the several
sections and paragraphs of this Agreement are inserted for reference only
and shall not control or otherwise affect the meaning hereof.
3.9. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement, and supersedes all prior agreements and understandings, oral and
written, between the Parties hereto with respect to the subject matter
hereof.
3.10. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all such
counterparts shall together constitute one and the same instrument.
18
IN WITNESS WHEREOF, the Parties have caused this Agreement to be
executed and delivered by their respective officers thereunto duly
authorized.
COMMSCOPE, INC.
By: /s/ Jearld L. Leonhardt
---------------------------
Name: Jearld L. Leonhardt
Title: Executive Vice President
and Chief Fincial Officer
THE FURUKAWA ELECTRIC CO., LTD.
By: /s/ Osamu Sato
----------------------------
Name: Osamu Sato
Title: Managing Director
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