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EXHIBIT 10.3
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of August 3, 2001 (this
"Agreement"), by and between NORTEL NETWORKS LLC, a limited liability company
organized under the laws of Delaware ("Investor") and ARRIS GROUP, INC. f/k/a
Broadband Parent Corporation, a Delaware corporation ("Newco").
WHEREAS, pursuant to (i) an Agreement and Plan of Reorganization dated
as of October 18, 2000, as amended (the "Plan of Reorganization") among Newco,
ANTEC Corporation, Broadband Transition Corporation, Nortel Networks Inc.,
Investor and Arris Interactive L.L.C., and (ii) an Amended and Restated
Investor Rights Agreement dated as of April 9, 2001, as amended, among Newco,
Nortel Networks Inc. and Investor, Investor will receive at the Closing (as
such term is defined in the Plan of Reorganization) shares of Newco Common
Stock (such shares and any shares of Newco Common Stock acquired or to be
acquired from time to time by Investor and any Permitted Transferee (as defined
below), the "Newco Shares");
WHEREAS, in connection with the Plan of Reorganization, Newco has
agreed to provide Investor certain registration rights as provided herein.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, the parties hereto agree as follows:
1. Demand Registration.
(a) Investor or any person acquiring by transfer any
Newco Shares (a "Permitted Transferee") (Investor and any such
Permitted Transferees being hereinafter referred to individually as a
"Stockholder" and collectively as the "Stockholders") shall at any
time have the right to require registration under the Securities Act
(as defined below), of the Newco Shares and any securities issued in
exchange for or in respect of such Newco Shares, whether pursuant to a
stock dividend, stock split, stock reclassification, recapitalization
or otherwise (such Newco Shares and such securities issued in exchange
for or in respect of such Newco Shares being collectively referred to
herein as the "Registrable Shares") upon the terms and subject to the
conditions set forth in this Agreement. For purposes of this
Agreement, "Securities Act" shall mean the United States Securities
Act of 1933, as amended, or any successor federal statute, and the
rules and regulations of the United States Securities and Exchange
Commission (or any other federal agency at the time administering such
Act) (the "Commission") issued under such Act, as they may, from time
to time, be in effect.
(b) Upon receipt by Newco of a written demand for
registration hereunder, Newco shall (i) promptly notify each other
Stockholder in writing of its receipt of such
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initial written demand for registration and (ii) as soon as
practicable, but in no event more than 30 days (except that with
respect to any registration on a Form S-1 Registration Statement (or
successor form thereto), such period shall be 45 days) after receipt
of such written demand, file with the Commission, and use its
reasonable best efforts to cause to become effective, a registration
statement under the Securities Act (a "Registration Statement") which
shall cover the Registrable Shares specified in the initial written
demand and in any written demand from any other Stockholder received
by Newco within 20 days of its giving the notice specified in clause
(i) hereof.
(c) If so requested by any Stockholder demanding
participation in a public offering or distribution of Registrable
Shares (a "Selling Stockholder") pursuant to this Section 1, the
Registration Statement shall provide for a delayed or continuous
offering of Registrable Shares pursuant to Rule 415 promulgated under
the Securities Act or any similar rule then in effect (a "Shelf
Offering"). If so requested by Selling Stockholders who own a majority
of the Registrable Shares then outstanding, the public offering or
distribution of Registrable Shares under this Agreement shall be
pursuant to a firm commitment underwriting, the managing underwriter
of which shall be a nationally recognized investment banking firm
selected by the Selling Stockholders and approved by Newco, which
approval shall not be unreasonably withheld. Newco shall enter into
the same underwriting agreement as shall the Selling Stockholders,
containing representations, warranties and agreements customarily made
by an issuer in underwriting agreements with respect to secondary
distributions. Newco, as a condition to fulfilling its obligations
under this Agreement, may require the underwriters to enter into an
agreement in customary form indemnifying Newco and the Selling
Stockholders against any Losses (as defined in Section 6 hereof) that
arise out of or are based upon an untrue statement or an alleged
untrue statement or omission in the Disclosure Documents (as defined
in Section 6 hereof) made in reliance upon and in conformity with
written information furnished to Newco by the underwriters
specifically for use in the preparation thereof.
(d) If the Board of Directors of Newco, in its good
faith judgment, determines that the filing of a Registration Statement
pursuant to this Section 1 should not be made because it would
materially and adversely affect any material business transaction
involving Newco (a "Valid Business Reason"), Newco may postpone filing
such a Registration Statement until such Valid Business Reason no
longer exists, but in no event for more than 75 days (such period of
postponement, the "Postponement Period"); and Newco shall give written
notice of its determination to postpone the filing of a Registration
Statement and of the fact that the Valid Business Reason for such
postponement no longer exists, in each case, promptly after the
occurrence thereof; provided, however, Newco shall not be permitted to
postpone the filing of a Registration Statement after the expiration
of any Postponement Period until 12 months after the expiration of
such Postponement Period. If Newco shall give any notice of
postponement of any Registration Statement, Newco shall not, during
the Postponement Period, register any shares of Newco Common Stock,
other than pursuant to a registration statement on Form S-4 or S-8 (or
an equivalent registration form then in effect). If Newco shall give
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any notice of postponement of the filing of a Registration Statement,
Newco shall, at such time as the Valid Business Reason that caused
such postponement no longer exists (but in no event later than 75 days
after the date of the postponement), use its reasonable best efforts
to effect the registration under the Securities Act of the Registrable
Shares covered by the postponed Registration Statement in accordance
with this Section 1. If Newco shall postpone the filing of any
Registration Statement, any of the Selling Stockholders shall have the
right to withdraw his or its demand for such registration by giving
notice to Newco within 20 days of the notice of postponement. In the
event that all of the Selling Stockholders withdraw their demand, such
demand shall not be counted for purposes of determining the number of
registrations to which Stockholders are entitled hereunder.
(e) Each Selling Stockholder may, before such a
Registration Statement becomes effective, withdraw his or its
Registrable Shares from sale, should the terms of the sale not be
satisfactory to such Selling Stockholder; should all Selling
Stockholders who are participating in such registration so withdraw,
however, such registration shall be deemed to have been effected for
the purposes of Sections 4(a) and 4(c) hereof unless such Selling
Stockholders pay (pro rata, in proportion to the number of shares
requested to be included) within 20 days after any such withdrawal,
all of the out-of-pocket expenses of Newco incurred in connection with
such registration.
(f) In the event that a Registration Statement demanded
by a Selling Stockholder pursuant to Section 1 hereof involves a firm
commitment underwritten public offering and the managing underwriter
thereof determines reasonably and in good faith that the inclusion in
such Registration Statement of any additional shares of Newco Common
Stock or other securities of Newco to be offered and sold for the
account of any person (including Newco) other than such Selling
Stockholder (each, a "Piggy-Back Seller") would adversely affect the
offering of any Registrable Shares by the Selling Stockholder, then,
subject to the provisions of that certain Registration Rights
Agreement, dated October 29, 1996, as amended, between ANTEC
Corporation and Tele-Communications, Inc., as in effect on the date
hereof (the "TCI Registration Rights Agreement"), the number of shares
to be offered for the accounts of each Piggy-Back Seller shall be
reduced or limited in proportion to the number of shares owned by each
such Piggy-Back Seller (as compared to all such Piggy-Back Sellers) to
the extent necessary to reduce the total number of shares to be
included in such Registration Statement by all Piggy-Back Sellers to
the amount that such managing underwriter determines would not
adversely affect the offering of the number of Registrable Shares
demanded to be registered by the Selling Stockholder. Subject to the
provisions of the TCI Registration Rights Agreement, in no event shall
a Selling Stockholder be required to reduce the number of Registrable
Shares demanded to be registered by such Selling Stockholder pursuant
to Section 1 hereof as a result of the inclusion in any Registration
Statement of Newco Common Stock or other securities of Newco to be
offered and sold for the account of any Piggy-Back Seller. All
references in this Agreement to the TCI Registration Rights Agreement
shall be understood to include the rights, remedies, obligations or
liabilities of Newco (as successor to ANTEC Corporation) under the TCI
Registration Rights Agreement upon
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and by reason of the closing of the transactions contemplated by the
Plan of Reorganization.
2. Incidental Registrations. Each time that Newco proposes to
register any of its equity securities under the Securities Act (other than a
registration effected solely to implement an employee benefit or stock option
plan or to sell shares obtained under any employee benefit or stock option plan
or a registration in connection with a transaction to which Rule 145 or any
successor rule of the Commission under the Securities Act is applicable),
whether for its account or the account of other stockholders of Newco, Newco
will give written notice to the Stockholders of its intention to do so. Each of
the Stockholders may give Newco a written request to register all or some of
its Registrable Shares in the registration described in the written notice from
Newco as set forth in the foregoing sentence, provided that such written
request is given within 20 days after receipt of any such notice from Newco
(with such request stating (i) the amount of Registrable Shares to be disposed
of and the intended method of disposition of such Registrable Shares and (ii)
any other information customarily requested by issuers in secondary
distributions to properly effect the registration of such Registrable Shares).
Upon receipt of such request, Newco will use its reasonable best efforts to
cause promptly all such Registrable Shares intended to be disposed of to be
registered under the Securities Act so as to permit their sale or other
disposition (in accordance with the intended methods set forth in the request
for registration), unless the sale is a firm commitment underwritten public
offering and the managing underwriter thereof determines reasonably and in good
faith in writing that the inclusion of such securities would materially
adversely affect the offering, in which case the number of shares to be offered
for the accounts of the Selling Stockholders shall be reduced or limited in
proportion to the number of shares owned by such Selling Stockholders to the
extent necessary to reduce the total number of shares to be included in such
offering to the amount recommended by such managing underwriting; provided,
that, subject to the provisions of the TCI Registration Rights Agreement, if
securities are being offered for the account of other persons or entities as
well as Newco, such reduction shall be made pro rata from the securities
intended to be offered by such persons and from the Selling Stockholders.
Newco's obligations under this Section 2 shall apply to a registration
to be effected for securities to be sold for the account of Newco as well as a
registration statement which includes securities to be offered for the account
of other holders of Newco equity securities. No registration effected under
this Section 2 shall relieve Newco of its obligations to effect demand
registrations under Section 1.
3. Expenses of Registration. Newco shall pay all costs and
expenses directly attributable to the registration of the Registrable Shares
pursuant hereto, including, without limitation: (a) Commission, Nasdaq National
Market (or exchange) and NASD registration and filing fees; (b) fees and
expenses of compliance with state and provincial securities or "blue sky" laws
and in connection with the preparation of a "blue sky" survey, including
without limitation, reasonable fees and expenses of blue sky counsel; (c)
printing and copying expenses; (d)messenger and delivery expenses; (e) expenses
incurred in connection with any road show; (f) fees and disbursements of
counsel for Newco; (g) with respect to each registration, the fees and
disbursements of one counsel for the Selling Stockholders (selected by the
Selling Stockholders);
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(h) fees and disbursements of all independent public accountants (including the
expenses of any audit and/or "cold comfort" letter) and fees and expenses of
other persons, including special experts, retained by Newco; (i) fees and
expenses of underwriters, if any, customarily paid by issuers or sellers of
securities. Notwithstanding the foregoing, all transfer taxes, brokerage
commissions and underwriters' discounts attributable to the Registrable Shares
being offered and sold by such Selling Stockholders and any out-of-pocket
expenses of the Selling Stockholders (except as expressly contemplated by the
preceding sentence) shall be for the account of the Selling Stockholders.
4. Limitations on Registration Rights. Notwithstanding anything
to the contrary contained elsewhere herein, the registration rights granted to
the Stockholders under the provisions of Section 1 hereof are expressly subject
to the following terms, conditions and limitations:
(a) In no event shall Newco be obligated to effect more
than three (3) registrations on a Form S-1 Registration Statement.
(b) Newco shall not be required to effect any
registration pursuant to Section 1 unless the demand or demands for
registration cover an aggregate number of Registrable Shares
constituting at least five percent (5%) of the then outstanding shares
of Common Stock.
(c) The Stockholders shall not be entitled to demand
Newco to register Registrable Shares pursuant to Section 1 more than
once in any 90-day period.
(d) Newco shall be entitled to extend the time period
specified in Section 1(b)(ii) with respect to the filing of a
Registration Statement for an additional period of time not to exceed
thirty (30) days if Newco, in order to comply with such demand, would
be required to (A) undergo a special interim audit or (B) prepare and
file with the Commission, sooner than would otherwise be required, pro
forma or other financial statements relating to any proposed or
probable transaction.
5. Obligations with Respect to Registration.
(a) If and whenever Newco is obligated by the provisions
of this Agreement to effect the registration of any Registrable Shares
under the Securities Act, Newco shall, as expeditiously as possible:
(i) prepare and file with the Commission a
Registration Statement on an appropriate registration form of
the Commission for the disposition of such Registrable Shares
in accordance with the intended method of disposition
thereof, and such Registration Statement shall comply as to
form in all material respects with the requirements of the
applicable form and include all financial statements required
by the Commission to be filed therewith, and Newco shall use
its
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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, Newco
will furnish to one counsel for the Selling Stockholders
participating in the planned offering 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, and Newco shall not file any Registration
Statement or amendment thereto or any prospectus or
supplement thereto to which the holders of a majority of the
Registrable Shares covered by such Registration Statement or
the underwriters, if any, shall reasonably object in
writing);
(ii) prepare and file with the Commission any
amendments and supplements to the Registration Statement and
to the prospectus used in connection therewith as may be
necessary to keep the Registration Statement effective and to
comply with the provisions of the Securities Act with respect
to the disposition of all Registrable Shares covered by the
Registration Statement for the period required to effect the
distribution of such Registrable Shares, but in no event
shall Newco be required to do so for a period of more than
180 days following the effective date of the Registration
Statement other than a Shelf Offering and for a Shelf
Offering, the earlier of (A) the date the offering is
completed and (B) two years following the effective date of
the Shelf Offering;
(iii) furnish at Newco's expense to the Selling
Stockholders such number of copies of the Registration
Statement and any preliminary, final, supplemental or amended
prospectus, in conformity with the requirements of the
Securities Act, as may reasonably be requested by the Selling
Stockholders in order to facilitate the disposition of the
Registrable Shares covered by such Registration Statement,
but only while Newco is required under the provisions hereof
to cause a Registration Statement to remain effective;
(iv) register or qualify the Registrable Shares
covered by a Registration Statement under such other
securities or blue sky laws of such jurisdictions in the
United States and Canada as the Selling Stockholders shall
reasonably request, and do any and all other acts and things
which may be necessary to enable each Selling Stockholder
whose Registrable Shares are covered by such Registration
Statement to consummate the disposition in such jurisdictions
of such Registrable Shares; provided, however, that Newco
shall in no event be required to qualify to do business as a
foreign corporation or a dealer in any jurisdiction where it
is not so qualified, to conform the composition of its assets
at the time to the securities and blue sky laws of such
jurisdiction, to exercise or file any general consent to
service of process in suits other than those arising out of
the offer and sale of the Registrable Shares covered by the
Registration Statement, or to subject itself to taxation, in
each case in any jurisdiction where it has not theretofore
done so;
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(v) promptly notify each Selling Stockholder
covered by such Registration Statement and each managing
underwriter, if any: (A) 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; (B) of any request by the
Commission or state or provincial securities authority for
amendments or supplements to the Registration Statement or
the prospectus related thereto or for additional information;
(C) 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; (D) of
the receipt by Newco of any notification with respect to the
suspension of the qualification of any Registrable Shares for
sale under the securities or blue sky laws of any
jurisdiction or the initiation of any proceeding for such
purpose; (E) of the existence of any fact of which Newco
becomes aware which results in the Registration Statement,
the prospectus related thereto or any document incorporated
therein by reference containing an untrue statement of a
material fact or omitting to state a material fact required
to be stated therein or necessary to make any statement
therein not misleading; and (F) if at any time the
representations and warranties contemplated by any
underwriting agreement, securities sale agreement, or other
similar agreement, relating to the offering shall cease to be
true and correct in all material respects; and, if the
notification relates to an event described in clause (E),
Newco shall promptly prepare and furnish to each such Selling
Stockholder and each underwriter, if any, a reasonable number
of copies of a prospectus supplemented or amended so that, as
thereafter delivered to the purchasers of such Registrable
Shares, such prospectus shall not include an untrue statement
of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they
were made, not misleading;
(vi) comply with all applicable rules and
regulations of the Commission, and make generally available
to its security holders, as soon as reasonably practicable
after the effective date of the Registration Statement (and
in any event within 16 months thereafter), an earnings
statement (which need not be audited) covering the period of
at least twelve consecutive months beginning with the first
day of Newco's first calendar quarter after the effective
date of the Registration Statement, which earnings statement
shall satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 (or any successor rule)
thereunder;
(vii) enter into such customary agreements
(including, if applicable, an underwriting agreement) and
take such other actions as the holders of a majority of the
Registrable Shares participating in such offering shall
reasonably request in order to expedite or facilitate the
disposition of such Registrable Shares. The holders of the
Registrable Shares which are to be distributed by such
underwriters
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shall be parties to such underwriting agreement and may, at
their option, require that Newco make to and for the benefit
of such Selling Stockholders the representations, warranties
and covenants of Newco which are being made to and for the
benefit of such underwriters;
(viii) obtain an opinion from Newco's counsel and
a "cold comfort" letter from Newco's independent public
accountants in customary form and covering such matters as
are customarily covered by such opinions and "cold comfort"
letters delivered to underwriters in underwritten public
offerings, which opinion and letter shall be reasonably
satisfactory to the underwriter, if any, and to the Selling
Stockholders, and furnish to each Selling Stockholder and to
each underwriter, if any, a copy of such opinion and letter
addressed to such Selling Stockholder or underwriter;
(ix) deliver promptly to each Selling
Stockholder and each underwriter, if any, copies of all
correspondence between the Commission and Newco, its counsel
or auditors, make reasonably available for inspection by any
Selling Stockholder of such Registrable Shares covered by
such Registration Statement, by any underwriter participating
in any disposition to be effected pursuant to such
Registration Statement and by any attorney, accountant or
other agent retained by any such Selling Stockholder or any
such underwriter, all pertinent financial and other records,
pertinent corporate documents and properties of Newco, and
cause all of Newco's officers, directors and employees to
supply all information reasonably requested by any such
Selling Stockholder, underwriter, attorney, accountant or
agent in connection with such Registration Statement;
(x) use its reasonable best efforts to obtain
the withdrawal of any order suspending the effectiveness of
the Registration Statement;
(xi) promptly prior to the filing of any
document which is to be incorporated by reference into the
Registration Statement or the prospectus (after the initial
filing of such Registration Statement) provide copies of such
document to counsel for the Selling Stockholders and to each
managing underwriter, if any, and make Newco's
representatives reasonably available for discussion of such
document and make such changes in such document concerning
the Selling Stockholders prior to the filing thereof as
counsel for such Selling Stockholders or underwriters may
reasonably request;
(xii) furnish to each Selling Stockholder and
managing underwriter, if any, without charge, at least one
signed copy of the Registration Statement and any
post-effective amendments thereto, including financial
statements and schedules, all documents incorporated therein
by reference and all exhibits (including those incorporated
by reference);
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(xiii) cooperate with the Selling Stockholders and
managing underwriters, if any, to facilitate the timely
preparation and delivery of certificates not bearing any
restrictive legends representing the Registrable Shares to be
sold, and cause such Registrable Shares to be issued in such
denominations and registered in such names in accordance with
the underwriting agreement prior to any sale of Registrable
Shares to the underwriters or, if not an underwritten
offering, in accordance with the instructions of the Selling
Stockholders at least three business days prior to any sale
of Registrable Shares and instruct any transfer agent and
registrar of Registrable Shares to release any stop transfer
orders in respect thereof;
(xiv) comply in all respects with Regulation M of
the Exchange Act (as defined below), and any successor rules
and regulations to Regulation M ("Regulation M"), during any
distribution of Registrable Shares pursuant to this
Agreement; and
(xv) cause such Registrable Shares covered by a
Registration Statement to be listed on the principal exchange
or exchanges (including the Nasdaq Stock Market) on which the
Newco Common Stock is then listed upon the sale of such
Registrable Shares pursuant to such Registration Statement.
For purposes of this Agreement, "Exchange Act" shall mean the
United States Securities Exchange Act of 1934, as amended, or any
successor federal statute, and the rules and regulations of the
Commission issued under such Act, as they may, from time to time, be
in effect.
(b) Subject to any rights under registration rights
agreements which ANTEC Corporation is a party as of the date hereof,
Newco agrees that if it shall previously have received a request for
registration pursuant to Section 1 hereof and if such previous
registration shall not have been withdrawn or abandoned, Newco shall
not effect any registration of any of its securities under the
Securities Act (other than a registration on Form S-4 or Form S-8 or
any successor form which is then in effect), whether or not for sale
for its own account, until a period of 60 days, shall have elapsed
from the effective date of such previous registration.
(c) Newco's obligations under this Agreement with
respect to a Selling Stockholder shall be conditioned upon such
Selling Stockholder's compliance with the following:
(i) Such Selling Stockholder shall cooperate
with Newco in connection with the preparation of the
Registration Statement, and for so long as Newco is obligated
to file and keep effective the Registration Statement, shall
provide to Newco, in writing, for use in the Registration
Statement, all such information regarding the Selling
Stockholder and its plan of distribution of the Registrable
shares as may be reasonably requested to enable Newco to
prepare the
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Registration Statement and prospectus covering the
Registrable Shares, to maintain the currency and
effectiveness thereof and otherwise to comply with all
applicable requirements of law in connection therewith.
(ii) During such time as such Selling
Stockholder may be engaged in a distribution of the
Registrable Shares, such Selling Stockholder shall comply
with Regulation M and pursuant thereto it shall, among other
things: (A) not engage in any stabilization activity in
connection with the securities of Newco in contravention of
such regulation; (B) distribute the Registrable Shares solely
in the manner described in the Registration Statement; (C)
cause to be furnished to each broker through whom the
Registrable Shares may be offered, or to the offeree if an
offer is not made through a broker, such copies of the
prospectus covering the Registrable Shares and any amendment
or supplement thereto and documents incorporated by reference
therein as may be required by law; and (D) not bid for or
purchase any securities of Newco or attempt to induce any
person to purchase any securities of Newco other than as
permitted under the Exchange Act.
(iii) If the Registration Statement provides for
a Shelf Offering, then at least five (5) business days prior
to any distribution of the Registrable Shares, any Selling
Stockholder who is an "affiliated purchaser" (as defined in
Rule 100 of Regulation M) of Newco shall advise Newco in
writing of the date on which the distribution by such Selling
Stockholder will commence, the number of the Registrable
Shares to be sold and the manner of sale. Such Selling
Stockholder also shall inform Newco when each distribution of
such Registrable Shares is complete.
(iv) Stockholder agrees and covenants that, upon
receipt of any notice from Newco of the happening of any
event of the kind described in Section 5(a)(v)(E) hereof,
Stockholder will forthwith discontinue disposition of
Registrable Shares pursuant to the registration statement
covering such Registrable Shares until Stockholder's receipt
of the copies of the supplemented or amended prospectus
contemplated by such section, and, if so directed by Newco,
Stockholder will deliver to Newco all copies, other than
permanent file copies, then in Stockholder's possession of
the most recent prospectus covering such Registrable Shares
at the time of receipt of such notice; provided, however,
that the Company shall use its reasonable best efforts to
promptly prepare and furnish to each such Selling Stockholder
and each underwriter, if any, a reasonable number of copies
of the supplemented or amended prospectus.
6. Indemnification.
(a) By Newco. Newco agrees to indemnify and hold
harmless, to the full extent permitted by law, each Selling
Stockholder, its officers, directors and agents, and each person, if
any, who controls any of the foregoing persons within the meaning of
the Securities Act against all losses, claims, damages, liabilities
and expenses, joint or several
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(including reasonable fees of one counsel for all Selling
Stockholders) ("Losses"), to which each indemnified party may become
subject under the Securities Act, state and provincial securities laws
or otherwise in respect thereof insofar as such Losses arise out of or
are based upon any untrue or alleged untrue statement of a material
fact contained in any registration statement, prospectus or
preliminary prospectus or any amendment thereof or supplement thereto
(the "Disclosure Documents") or any omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein (in the case of a prospectus,
in the light of the circumstances under which they were made) not
misleading, except insofar as the same are caused by or contained in
any information with respect to such Selling Stockholder furnished in
writing to Newco by such Selling Stockholder expressly for use
therein. In connection with an underwritten offering, Newco will
indemnify the underwriters thereof, their officers and directors and
each person who controls such underwriters (within the meaning of the
Securities Act) to the same extent as provided above with respect to
the indemnification of the holders of Registrable Shares. Newco will
reimburse each such indemnified party for all legal or other expenses
reasonably incurred by such party (as incurred by such party) in
connection with investigating or defending any such claims, including,
subject to such indemnified party's compliance with the provisions of
the last sentence of subsection (c) of this Section 6, any amounts
paid in settlement of any litigation, commenced or threatened. The
foregoing indemnity and reimbursement of expenses shall remain in full
force and effect regardless of any investigation made by or on behalf
of such indemnified party and shall survive the transfer of such
Registrable Shares by such Selling Stockholder.
(b) By the Selling Stockholders. In connection with any
registration statement in which a Selling Stockholder is
participating, each such Selling Stockholder shall furnish to Newco in
writing such information with respect to such Selling Stockholder as
Newco reasonably requests for use in connection with any such
registration statement or prospectus and agrees to indemnify,
severally and not jointly, to the extent permitted by law, Newco, the
directors and officers of Newco and each person who controls Newco
(within the meaning of the Securities Act) against any Losses
resulting from any untrue or alleged untrue statement of a material
fact or any omission or alleged omission of a material fact required
to be stated in the Disclosure Documents or necessary to make the
statements therein (in the case of a prospectus, in the light of the
circumstances under which they were made) not misleading, to the
extent, but only to the extent, that such untrue statement or omission
is contained in any information with respect to such Selling
Stockholder so furnished in writing by such Selling Stockholder
expressly for use in the registration statement, provided that the
liability of such Selling Stockholder pursuant to this Section 6(b)
shall not exceed an amount equal to the net proceeds of the sale of
Registrable Shares sold pursuant to such registration statement that
are received by or for the benefit of such Selling Stockholder. Newco
shall be entitled to receive indemnities from underwriters, selling
brokers, dealer managers and similar securities industry professionals
participating in the distribution to the same extent as provided above
with respect to information so furnished in writing by such persons
specifically for inclusion in
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any prospectus or registration statement. The Selling Stockholders
shall reimburse each such indemnified party for all legal or other
expenses reasonably incurred by such party in connection with
investigating or defending any such claim, including, subject to such
indemnified party's compliance with the provisions of the last
sentence of subsection (c) of this Section 6, any amounts paid in
settlement of any litigation, commenced or threatened. Newco and each
Selling Stockholder hereby acknowledge and agree that, unless
otherwise expressly agreed to in writing by such Selling Stockholder
to the contrary, for all purposes of this Agreement the only
information furnished or to be furnished to Newco for use in any such
registration statement, preliminary, final or summary prospectus or
amendment or supplement thereto are statements specifically relating
to (i) transactions between such Selling Stockholder and its
affiliates, as that term is defined in Rule 12b-2 of the Exchange Act
("Affiliates"), on the one hand, and Newco, on the other hand; (ii)
the beneficial ownership of shares of Newco Common Stock by such
Selling Stockholder and its Affiliates, (iii) the name and address of
such Selling Stockholder, and (iv) any additional information about
such Selling Stockholder or the plan of distribution (other than for
an underwritten offering) that is required by law to be disclosed in
any such document.
(c) Third Party Claims. Promptly after the receipt by
any party hereto of notice of any claim, action, suit or proceeding
(whether commenced or threatened) by any person who is not a party to
this Agreement (collectively, an "Action") which is subject to
indemnification hereunder, such party (the "Indemnified Party") shall
give reasonable written notice to the party from whom indemnification
is claimed (the "Indemnifying Party"). The Indemnified Party shall be
entitled, at the sole expenses and liability of the Indemnifying
Party, to exercise full control of the defense, compromise or
settlement of any such Action unless the Indemnifying Party, within a
reasonable time after the giving of such notice by the Indemnified
Party, shall: (i) admit in writing to the Indemnified Party, the
Indemnifying Party's liability to the Indemnified Party for such
Action under the terms of this Section 6; (ii) notify the Indemnified
Party in writing of the Indemnifying Party's intention to assume the
defense thereof and (iii) retain legal counsel reasonably satisfactory
to the Indemnified Party to conduct the defense of such Action. The
Indemnified Party and the Indemnifying Party shall cooperate with the
party assuming the defense, compromise or settlement of any such
Action in accordance herewith in any manner that such party reasonably
may request. If the Indemnifying Party so assumes the defense of any
such Action, the Indemnified Party shall have the right to employ
separate counsel and to participate in (but not control) the defense,
compromise, or settlement thereof, but the fees and expenses of such
counsel shall be the expenses of the Indemnified Party unless (i) the
Indemnifying Party has agreed to pay such fees and expenses, (ii) any
relief other than the payment of money damages is sought against the
Indemnified Party, (iii) the Indemnified Party shall have been advised
by its counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
Indemnifying Party or (iv) the Indemnified Party shall have been
advised by counsel that representation of both parties by the same
counsel is otherwise inappropriate under applicable standards of
professional conduct, and, in any such case, the fees and expenses of
such separate counsel shall be borne by the
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Indemnifying Party. No Indemnifying Party shall settle or compromise
any such Action in which any relief other than the payment of money
damages is sought against any Indemnified Party unless the Indemnified
Party consents in writing to such compromise or settlement. No
Indemnified Party shall settle or compromise any such Action for which
it is entitled to indemnification hereunder without the prior written
consent of the Indemnifying Party, unless the Indemnifying Party shall
have failed, after reasonable notice thereof, to undertake control of
such Action in the manner provided above in this Section 6.
(d) Contribution. If the indemnification provided for in
subsections(a) or (b) of this Section 6 is unavailable to or
insufficient to hold the indemnified party harmless under subsections
(a) or (b) above in respect of any Losses referred to therein for any
reason other than as specified therein, then the Indemnifying Party
shall contribute to the amount paid or payable by such indemnified
party as a result of such Losses in such proportion as is appropriate
to reflect the relative fault of the indemnifying party on the one
hand and such Indemnified Party on the other in connection with the
statements or omissions which resulted in such Losses, as well as any
other relevant equitable considerations. The relative fault 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
(or omitted to be supplied by) Newco or the Selling Stockholder (or
underwriter) and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The amount paid or payable by an Indemnified Party as a
result of the Losses referred to above in this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending
any such action or claim. 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. Notwithstanding
anything in this Section 6(d) to the contrary, no Indemnifying Party
(other than Newco) shall be required pursuant to this Section 6(d) to
contribute any amount in excess of the net proceeds received by such
Indemnifying Party from the sale of Registrable Shares in the offering
to which the Losses of the Indemnified Parties relate, less the amount
of any indemnification payment made by such Indemnifying Party
pursuant to subsection (a) or (b) of this Section 6.
(e) The indemnity agreements contained herein shall be
in addition to any other rights to indemnification or contribution
which any Indemnified Party may have pursuant to law or contract and
shall remain operative and in full force and effect regardless of any
investigation made or omitted by or on behalf of any Indemnified Party
and shall survive the transfer of the Registrable Shares by any such
party.
(f) The indemnification and contribution required by
this Section 6 shall be made by periodic payments of the amount
thereof during the course of the investigation or defense, as and when
bills are received or expense, loss, damage or liability is incurred.
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7. Limitations on Subsequent Registration Rights; Priority.
Subject to the provisions of the TCI Registration Rights Agreement, Newco shall
not, without the prior written consent of Stockholders holding at least a
majority of the Registrable Shares then held by all Stockholders, enter into
any agreement with any holder or prospective holder of any securities of Newco
which grants such holder or prospective holder rights to include securities of
Newco in any Registration Statement any of which material rights are more
favorable than those provided to Stockholders hereunder, without also offering
to Stockholders such more favorable material rights.
8. Rule 144 Requirements. Newco agrees to:
(a) make and keep current public information about Newco
available, as those terms are understood and defined in Rule 144;
(b) use its reasonable best efforts to file with the
Commission in a timely manner all reports and other documents required of Newco
under the Securities Act and the Exchange Act; and
(c) furnish to any holder of Registrable Shares upon
request (i) a written statement by Newco as to its compliance with the
reporting requirements of Rule 144 and of the Securities Act and the Exchange
Act, (ii) a copy of the most recent annual or quarterly report of Newco and
(iii) such other reports and documents of Newco as such holder may reasonably
request to avail itself of any similar rule or regulation of the Commission
allowing it to sell any such securities without registration.
9. Miscellaneous.
(a) Notices. All notices, requests, demands, waivers and
other communications required or permitted to be given under this Agreement
shall be in writing and shall be deemed to have been duly given if delivered
personally or mailed, certified or registered mail with postage prepaid, or
sent by telex, telegram or telecopier, as follows:
(i) if to Investor:
Nortel Networks LLC
200 Athens Way
Nashville, TN 37228
Attn: Legal Department
Facsimile: (615) 432-4067
and with a copy to:
Nortel Networks Inc.
2221 Lakeside Blvd.
Richardson, TX 75082
Attn: Robert Fishman
Facsimile: (972) 684-3888
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(ii) if to Newco:
Arris Group, Inc.
11450 Technology Circle
Duluth, GA 30097
Attn: Larry Margolis
Facsimile: (678) 473-8470
and with a copy to:
ANTEC Corporation
11450 Technology Circle
Duluth, GA 30097
Attn: Bob Stanzione
Facsimile: (678) 473-8470
or to such other person or address as any party shall specify by notice in
writing to the other party. Notice of a change of address shall be effective
only upon actual receipt thereof.
(b) Entire Agreement. This Agreement, together with the
TCI Registration Rights Agreement, constitutes the entire agreement among the
parties hereto and supersedes all prior agreements and understandings, oral and
written, between the parties hereto with respect to the subject matter hereof.
(c) Binding Effect; Benefit. This Agreement shall insure
to the benefit of and be binding upon the parties hereto and their respective
successors and assigns. Nothing in this Agreement, expressed or implied, is
intended to confer on any person other than the parties hereto or their
respective successors and assigns, any rights, remedies, obligations or
liabilities under or by reason of this Agreement, other than rights conferred
upon indemnified persons under Section 6 and rights conferred upon Permitted
Transferees. Nothing in this Agreement shall be deemed to create an independent
obligation on the part of any Stockholder to sell any Registrable Shares
pursuant to any effective registration statement.
(d) Termination. This Agreement shall terminate upon the
first such instance as the Stockholders, collectively, cease to own at least
two percent (2%) of the outstanding Newco Common Stock. Notwithstanding the
foregoing, the rights, duties and obligations of Newco and the Stockholders
under Section 6 shall survive the termination of this Agreement.
(e) Amendment and Modification. This Agreement may be
amended or modified only by an instrument in writing signed by or on behalf of
such party and any other person then a Stockholder. Any term or provision of
this Agreement may be waived in writing at any time by the party which is
entitled to the benefits thereof.
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(f) Enforceability. Any term or provision of this
Agreement which is invalid or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining terms
and provisions of this Agreement or affecting the validity or enforceability of
any of the terms or provisions of this Agreement in any other jurisdiction.
(g) Equitable Remedies. The parties hereto acknowledge
that there would be no adequate remedy at law if any party fails to perform any
of its obligation hereunder, and, accordingly, agree that each party, in
addition to any other remedy to which it may be entitled at law or in equity,
shall be entitled to injunctive relief, including specific performance, to
enforce such obligations without the posting of any bond, and, if any action
should be brought in equity to enforce any of the provisions of this Agreement,
none of the parties hereto shall raise the defense that there is an adequate
remedy at law.
(h) Section Headings. The section headings contained in
this Agreement are inserted for reference purposes only and shall not affect
the meaning or interpretation of this Agreement.
(i) Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, and all of which
together shall be deemed to be one and the same instrument.
(j) Applicable Law. This Agreement and the legal
relations between the parties hereto shall be governed by and construed in
accordance with the laws of the State of Delaware, without regard to the
conflict of laws thereof.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
"INVESTOR"
NORTEL NETWORKS LLC
By: /s/ Craig Johnson
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Its:
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ARRIS GROUP, INC.
f/k/a Broadband Parent Corporation
By: /s/ Lawrence A. Margolis
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Its:
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