-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, T+NaC/2FQnJTnqB+H2S1RZOAfnqKUEVcZ+T5dbmJqIlRpTM1bpBfGPLs/kR/rOiL bsPv6Ub46i0WEV16vYDLdw== 0000895345-02-000509.txt : 20021009 0000895345-02-000509.hdr.sgml : 20021009 20021009131824 ACCESSION NUMBER: 0000895345-02-000509 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 5 CONFORMED PERIOD OF REPORT: 20021009 ITEM INFORMATION: Other events ITEM INFORMATION: Financial statements and exhibits FILED AS OF DATE: 20021009 FILER: COMPANY DATA: COMPANY CONFORMED NAME: COMMSCOPE INC CENTRAL INDEX KEY: 0001035884 STANDARD INDUSTRIAL CLASSIFICATION: RADIO & TV BROADCASTING & COMMUNICATIONS EQUIPMENT [3663] IRS NUMBER: 364135495 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-12929 FILM NUMBER: 02784870 BUSINESS ADDRESS: STREET 1: 1375 LENOIR RHYNE BLVD CITY: HICKORY STATE: NC ZIP: 28602 BUSINESS PHONE: 8283242200 MAIL ADDRESS: STREET 1: 1375 LENOIR RHYNE BLVD CITY: HICKORY STATE: NC ZIP: 28602 8-K 1 lh8k.txt FORM 8-K =============================================================================== SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ----------------------------------- FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934 ----------------------------------- DATE OF REPORT: OCTOBER 9, 2002 DATE OF EARLIEST EVENT REPORTED: OCTOBER 9, 2002 COMMSCOPE, INC. (Exact name of registrant as specified in its charter) DELAWARE 1-12929 36-4135495 (State or other (Commission File (I.R.S. Employer jurisdiction of Number) Identification Number) incorporation or organization) 1100 COMMSCOPE PLACE, SE HICKORY, NORTH CAROLINA 28602 (Address of principal executive offices) REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (828) 324-2200 =============================================================================== Item 5. OTHER EVENTS. ------------ Pursuant to a Stock Purchase Agreement, filed with this report as Exhibit 2.1 hereto, on October 9, 2002 CommScope, Inc. (the "Company") repurchased 2,543,100 shares of the Company's common stock, par value $0.01 per share (the "Common Stock"), from Lucent Technologies Inc. ("Lucent") for an aggregate purchase price of $13,224,120 and The Furukawa Electric Co., Ltd. ("Furukawa") purchased 7,656,900 shares of Common Stock from Lucent for an aggregate purchase price of $39,815,880. The Company issued the 10,200,000 shares of Common Stock to Lucent on November 16, 2001 in connection with the Company's investment in OFS BrightWave LLC, a venture that the Company and Furukawa formed to acquire certain fiber cable and transmission fiber assets from Lucent. In connection with the purchase of Common Stock from Lucent, the Company and Furukawa also entered into Amendment No. 1 to the Amended and Restated Memorandum of Understanding, a Stockholders Agreement and a Registration Rights Agreement, which are filed with this report as Exhibits 2.2, 4.1 and 4.2 respectively. Item 7. FINANCIAL STATEMENTS AND EXHIBITS. --------------------------------- EXHIBIT DESCRIPTION ------- ----------- 2.1 Stock Purchase Agreement dated as of October 9, 2002 by and among Lucent Technologies Inc., CommScope, Inc. and The Furukawa Electric Co., Ltd. 2.2 Amendment No. 1 dated as of October 9, 2002 to the Amended and Restated Memorandum of Understanding, dated as of November 15, 2001, by and between The Furukawa Electric Co., Ltd. and CommScope, Inc. 4.1 Stockholders Agreement, dated as of October 9, 2002 by and between CommScope, Inc. and The Furukawa Electric Co., Ltd. 4.2 Registration Rights Agreement, dated as of October 9, 2002, by and between CommScope, Inc. and The Furukawa Electric Co., Ltd. 1 SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on behalf of the undersigned hereunto duly authorized. Dated: October 9, 2002 COMMSCOPE, INC. By: /s/ Frank B. Wyatt, II --------------------------------------- Frank B. Wyatt, II Senior Vice President, General Counsel and Secretary 2 EXHIBIT INDEX EXHIBIT DESCRIPTION ------- ----------- 2.1 Stock Purchase Agreement dated as of October 9, 2002 by and among Lucent Technologies Inc., CommScope, Inc. and The Furukawa Electric Co., Ltd. 2.2 Amendment No. 1 dated as of October 9, 2002 to the Amended and Restated Memorandum of Understanding, dated as of November 15, 2001, by and between The Furukawa Electric Co., Ltd. and CommScope, Inc. 4.1 Stockholders Agreement, dated as of October 9, 2002 by and between CommScope, Inc. and The Furukawa Electric Co., Ltd. 4.2 Registration Rights Agreement, dated as of October 9, 2002, by and between CommScope, Inc. and The Furukawa Electric Co., Ltd. 3 EX-2.1 3 ex2_1.txt STOCK PURCHASE AGREEMENT Exhibit 2.1 EXECUTION COPY -------------- STOCK PURCHASE AGREEMENT by and among LUCENT TECHNOLOGIES INC., COMMSCOPE, INC. and THE FURUKAWA ELECTRIC CO., LTD., dated as of October 9, 2002 Table of Contents PAGE ---- ARTICLE I PURCHASE OF STOCK.............................................1 Section 1.1 Purchase and Sale of Shares........................1 Section 1.2 Closings; Deliveries...............................2 Section 1.3 Registration Rights Agreement......................3 Section 1.4 Termination of Financing Agreement.................3 ARTICLE II REPRESENTATIONS AND WARRANTIES...............................3 Section 2.1 Representations and Warranties of Company..........3 Section 2.2 Representations and Warranties of Purchaser........5 Section 2.3 Representations and Warranties of Seller...........5 Section 2.4 Broker's Fee.......................................6 ARTICLE III MISCELLANEOUS...............................................7 Section 3.1 Notice.............................................7 Section 3.2 Transfer Taxes; Other Costs........................8 Section 3.3 Entire Agreement...................................8 Section 3.4 Amendments and Waivers.............................8 Section 3.5 Assignment.........................................8 Section 3.6 Governing Law; Consent to Jurisdiction.............8 Section 3.7 Waiver of Jury Trial...............................9 Section 3.8 Headings...........................................9 Section 3.9 Expenses...........................................9 Section 3.10 Counterparts.......................................9 Section 3.11 Publicity..........................................9 i INDEX OF DEFINED TERMS ---------------------- AGREEMENT.........................................................preamble CLOSING.............................................................1.2(a) CLOSING DATE........................................................1.2(a) COMMON STOCK......................................................recitals COMPANY...........................................................preamble COMPANY ACQUIRED SHARES.............................................1.1(b) COMPANY AGGREGATE PURCHASE PRICE....................................1.1(b) EXCHANGE ACT........................................................2.1(e) FINANCING AGREEMENT...............................................recitals INVESTMENT SHARES.................................................recitals LIENS...............................................................2.3(c) PER SHARE PURCHASE PRICE............................................1.1(a) PURCHASER.........................................................preamble PURCHASER ACQUIRED SHARES...........................................1.1(a) PURCHASER AGGREGATE PURCHASE PRICE..................................1.1(a) PURCHASER SUB............................................................1 REGISTRATION RIGHTS AGREEMENT.......................................1.1(c) SEC.................................................................2.1(e) SEC DOCUMENTS.......................................................2.1(e) SECURITIES ACT......................................................2.1(e) SELLER............................................................preamble ii STOCK PURCHASE AGREEMENT This STOCK PURCHASE AGREEMENT (this "AGREEMENT"), is made and entered into as of October 9, 2002, by and among Lucent Technologies Inc., a corporation organized under the laws of the State of Delaware (the "SELLER"), CommScope, Inc., a corporation organized under the laws of the State of Delaware (the "COMPANY") and The Furukawa Electric Co., Ltd., a corporation organized under the laws of Japan (the "PURCHASER"). W I T N E S S E T H: WHEREAS, Seller is the beneficial and record owner of 10,200,000 shares (the "INVESTMENT SHARES") of the issued and outstanding shares of common stock, par value $.01 per share, of the Company (the "COMMON STOCK"); WHEREAS, pursuant to the Financing Agreement among the Company, Seller and Purchaser dated July 24, 2001 as amended as of November 9, 2001 (the "FINANCING AGREEMENT"), the Company issued the Investment Shares to Seller in lieu of a portion of the cash purchase price payable by Purchaser under the Asset and Stock Purchase Agreement dated as of July 24, 2001, by and between Seller and Purchaser. WHEREAS, Seller desires to sell to Purchaser and the Company, and Purchaser on the one hand and the Company on the other hand, desire to purchase from Seller, the Purchaser Acquired Shares and the Company Acquired Shares (each as defined herein), respectively, on the terms and subject to the conditions contained in this Agreement. NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties agree as follows: ARTICLE I PURCHASE OF STOCK Section 1.1 PURCHASE AND SALE OF SHARES. Upon the terms and subject to the conditions contained in this Agreement: (a) Seller agrees to sell and transfer to Purchaser and Purchaser agrees to purchase from Seller, 7,656,900 shares of Common Stock (the "PURCHASER ACQUIRED SHARES") for $5.20 per share (the "PER SHARE PURCHASE PRICE") being equal to $39,815,880 in the aggregate (the "PURCHASER AGGREGATE PURCHASE PRICE"); (b) Seller agrees to sell and transfer to the Company and the Company agrees to purchase from Seller, 2,543,100 shares of Common Stock (the "COMPANY ACQUIRED SHARES") for the Per Share Purchase Price being equal to $13,224,120 in the aggregate (the "COMPANY AGGREGATE PURCHASE PRICE"); and Section 1.2 CLOSINGS; DELIVERIES. (a) Subject to the terms and conditions set forth in this Agreement, the closing of the transactions contemplated by this Agreement (the "CLOSING") shall take place simultaneously with the execution and delivery of this Agreement at the offices of Fried, Frank, Harris, Shriver & Jacobson at One New York Plaza, New York, New York, 10004 (the date of the Closing, the "CLOSING DATE"). (b) At the Closing; (i) Seller will deliver to Purchaser one or more stock certificates registered in the name of Purchaser with duly executed stock powers endorsed in favor of Purchaser reflecting the number of Shares acquired by Purchaser pursuant to Section 1.1(a) of this Agreement (or if Investment Shares are held in electronic format, effect an electronic transfer to the account of Purchaser) evidencing Purchaser's ownership of the number of Shares acquired by Purchaser pursuant to Section 1.1(a) of this Agreement; (ii) Purchaser will deliver to Seller the Purchaser Aggregate Purchase Price by wire transfer of immediately available federal funds to the account previously specified by Seller in writing; (iii) Seller will deliver to the Company one or more stock certificates registered in the name of the Company with duly executed stock powers endorsed in favor of the Company (or effect a book entry transfer to the account of the Company) evidencing the Company's ownership of the Company Acquired Shares; (iv) the Company will deliver to Seller the Company Aggregate Purchase Price by wire transfer of immediately available federal funds to the account previously specified by Seller in writing; (v) The Company and Purchaser shall execute and deliver a stockholders agreement and registration rights agreement, each in the form and substance as agreed to as of the date hereof between the Company and Purchaser; and 2 (vi) The Company and Purchaser shall execute and deliver an amendment to the Amended and Restated Memorandum of Understanding, dated as of November 15, 2001, between Purchaser and the Company, in the form and substance as agreed to date between the Company and Purchaser. Section 1.3 REGISTRATION RIGHTS AGREEMENT. Effective as of the Closing, Seller and the Company hereby agree that the Registration Rights Agreement, dated as of November 16, 2001, between Seller and the Company is terminated and of no further force or effect. Section 1.4 TERMINATION OF FINANCING AGREEMENT. Effective as of the Closing, the parties hereto agree that the Financing Agreement is terminated and of no further force or effect. ARTICLE II REPRESENTATIONS AND WARRANTIES Section 2.1 REPRESENTATIONS AND WARRANTIES OF COMPANY. The Company represents and warrants to each of Seller and Purchaser as follows: (a) ORGANIZATION STANDING AND POWER. The Company is duly organized, validly existing and in good standing under the laws of the State of Delaware and has all requisite power and authority to own, lease and otherwise hold and operate its assets and to carry on its business as it is currently being conducted. (b) AUTHORIZATION; ENFORCEABILITY. (i) The Company has full power and authority to enter into and perform this Agreement; (ii) the execution and delivery of this Agreement by the Company and the consummation by it of the transactions contemplated hereby have been duly authorized by all necessary corporate action; (iii) this Agreement has been duly executed and delivered by the Company; and (iv) this Agreement constitutes a valid and binding obligation of the Company enforceable against the Company in accordance with its terms. (c) NO RESTRICTIONS OR IMPEDIMENTS. Assuming Purchaser and its Affiliates do not beneficially own (as determined pursuant to Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT")) any capital stock of the Company, Purchaser, as a result of the Purchaser Acquired Shares and after giving effect to the Company's purchase of the Company Acquired Shares, will not on the Closing Date (i) be an Acquiring Person as defined in the Rights Agreement dated as of June 12, 1997, as amended, between the Company and Mellon Investor Services LLC, as rights agent or (ii) hold 15% or more of the 3 outstanding voting stock of the Company. No Delaware law or other takeover statute or similar law and no provision of the certificate of incorporation or by-laws of the Company or any agreement to which the Company is a party would impose restrictions which might adversely affect or delay the consummation of the transactions contemplated by this Agreement. (d) NO CONFLICTS. The execution, delivery and performance of this Agreement and the consummation by the Company of the transactions contemplated hereby will not conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give rise to any rights of termination, amendment, acceleration or cancellation of, or result in the creation of a lien or other encumbrance on any property or asset of the Company or any of its subsidiaries pursuant to any agreement, indenture or instrument to which the Company or any of its subsidiaries is a party, in each case material to the Company and its subsidiaries taken as a whole, or result in a violation of its certificate of incorporation or by-laws or any law, rule, regulation, order, judgment or decree applicable to the Company, any of its subsidiaries or by which any property or asset of the Company is bound or affected, in each case material to the Company and its subsidiaries taken as a whole. (e) SEC DOCUMENTS. The Company has, to its knowledge, filed all required reports, schedules, forms, statements and other documents with the Securities and Exchange Commission (the "SEC") since January 1, 2000 (any of the foregoing filed prior to the date hereto are referred to herein as the "SEC DOCUMENTS"). To the knowledge of the Company, as of their respective dates, the SEC Documents complied in all material respects with the requirements of the Securities Act of 1933, as amended (the "SECURITIES ACT") or the Exchange Act, as the case may be, and the rules and regulations of the SEC promulgated thereunder applicable to such SEC Documents, and none of the SEC Documents contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. To the knowledge of the Company, as of their dates, the financial statements of the Company included in the SEC Documents comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, have been prepared in accordance with generally accepted accounting principles applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto) and fairly present in all material respects the consolidated financial position of the Company and its consolidated subsidiaries as of the dates thereof and the consolidated results of their operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal and recurring year-end audit adjustments). 4 (f) FIRPTA. The Company is not a United States real property holding corporation within the meaning of section 897(c)(2) of the United States Internal Revenue Code of 1986, as amended. Section 2.2 REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser represents and warrants to each of the Company and Seller as follows: (a) ORGANIZATION. Purchaser is duly organized and validly existing under the laws of Japan and has all the requisite power and authority to own, lease and otherwise hold and operate its assets and to conduct its business as it is currently being conducted. (b) AUTHORIZATION; ENFORCEABILITY. (i) Purchaser has full power and authority to enter into and perform this Agreement; (ii) the execution and delivery of this Agreement by Purchaser and the consummation by it of the transactions contemplated hereby have been duly authorized by all necessary corporate action; (iii) this Agreement has been duly executed and delivered by Purchaser; and (iv) this Agreement constitutes a valid and binding obligation of Purchaser enforceable against Purchaser in accordance with its terms. (c) SECURITIES ACT. (i) the Purchaser Acquired Shares acquired by Purchaser pursuant to this Agreement will not be transferred or otherwise disposed of by Purchaser except in a transaction registered, or exempt from registration, under the Securities Act; (ii) Purchaser is acquiring the Purchaser Acquired Shares contemplated to be purchased by it under this Agreement for its own account, for investment and not with a view to the distribution thereof within the meaning of the Securities Act; (iii) Purchaser understands that the Purchaser Acquired Shares have not been, and will not be, registered under the Securities Act or any state securities laws, by reason of their acquisition by Seller in a transaction exempt from the registration requirements thereof, and that the Purchaser Acquired Shares may not be sold unless such sale is registered under the Securities Act and applicable state securities laws or is exempt from registration thereunder; (iv) Purchaser further understands that the exemption from registration afforded by Rule 144 under the Securities Act (the provisions of which are known by Purchaser) depends on the satisfaction of various conditions and that, if applicable, Rule 144 may afford the basis for sales of Purchaser Acquired Shares only in limited amounts; (v) Purchaser is an "accredited investor" (as defined in Rule 501(a) under the Securities Act); and (vi) Purchaser has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Purchaser Acquired Shares hereunder and is able to bear the economic risk of loss of such investment. Section 2.3 REPRESENTATIONS AND WARRANTIES OF SELLER. Seller represents and warrants to each of the Company and Purchaser as follows: 5 (a) ORGANIZATION. Seller is duly organized, validly existing and in good standing under the laws of the State of Delaware and has all the requisite power and authority to own, lease and otherwise hold and operate its assets and to conduct its business as it is currently being conducted. (b) AUTHORIZATION; ENFORCEABILITY. (i) Seller has full power and authority to enter into and perform this Agreement; (ii) the execution and delivery of this Agreement by Seller and the consummation by it of the transactions contemplated hereby have been duly authorized by all necessary corporate action; (iii) this Agreement has been duly executed and delivered by Seller; and (iv) this Agreement constitutes a valid and binding obligation of Seller enforceable against Seller in accordance with its terms. (c) TITLE TO COMPANY SHARES. Seller has (i) good and valid title to the Investment Shares and (ii) owns the Investment Shares free and clear of all liens, claims, security interests, pledges, mortgages, deeds of trust, rights of first refusal, restrictions (other than restrictions and applicable restrictive legends under applicable federal and state securities laws) and other encumbrances ("LIENS") other than Liens which will automatically release simultaneously with the Closing. The sale and delivery of the Investment Shares as contemplated by this Agreement are not subject to any preemptive right or right of first refusal, "tag along" or similar right, or right of redemption or repurchase. Upon delivery of the Purchaser Acquired Shares to Purchaser as provided in Section 1.2, Seller will transfer beneficial ownership of such Purchaser Acquired Shares and Purchaser will acquire good and valid title to such Purchaser Acquired Shares, in each case free and clear of all Liens other than Liens created by the Purchaser. Upon delivery of the Company Acquired Shares to the Company as provided in Section 1.2, Seller will transfer beneficial ownership of such Company Acquired Shares and the Company will acquire good and valid title to such Company Acquired Shares, in each case free and clear of all Liens other than Liens created by the Company. Section 2.4 BROKER'S FEE. Each party represents that it has not made any agreement or taken any other action which might cause any person to become entitled to a broker's or finder's fee or commission as a result of the transactions contemplated by this Agreement. ARTICLE III MISCELLANEOUS Section 3.1 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 6 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 the Company, 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 Seller, to : Lucent Technologies Inc. 600 Mountain Avenue Murray Hill, NJ 07974-6978 Attention: Vice President - Law Facsimile: (902) 582-6978 (c) If to Purchaser, 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 7 With a copy to: Masuda & Ejiri 399 Park Avenue, 18th Floor New York, New York 10022 Attention: Junji Masuda Facsimile: (212) 486-2614 Section 3.2 TRANSFER TAXES; OTHER COSTS. The Company will pay all sales, use, transfer, stamp, conveyance, value added or other similar taxes, duties, excise or governmental charges imposed by any United States or state taxing authority in connection with the sale of Investment Shares pursuant to this Agreement. Section 3.3 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement among the parties hereto with respect to the subject matters hereof and supercedes all prior understandings or agreements, oral or written, among the parties hereto. Section 3.4 AMENDMENTS AND WAIVERS. This Agreement may only be amended, modified, supplemented or a provision hereof waived, by a written instrument executed by the party against whom such change, waiver or amendment is sought to be enforced. Section 3.5 ASSIGNMENT. This Agreement will apply to, inure to the benefit of, and be binding upon and enforceable against the parties to this Agreement and their respective legal representatives, successors and permitted assigns. No party to this Agreement may assign this Agreement without the prior written consent of all of the other parties hereto. Section 3.6 GOVERNING LAW; CONSENT TO JURISDICTION. 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 except in such courts), and further agrees that service of any process, summons, notice or document by United States registered mail to its respective address set forth in Section 3.1 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 8 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. Section 3.7 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 3.7. Section 3.8 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. Section 3.9 EXPENSES. Except as otherwise provided in Section 3.2 of this Agreement, each party hereto will be responsible for their own expenses (including without limitation, legal and accounting fees) incurred in connection with the transactions contemplated under this Agreement, whether or not such transactions are consummated. Section 3.10 COUNTERPARTS. This Agreement may be executed in any number of separate counterparts, each of which will be deemed to be an original, but which together will constitute one and the same instrument. Section 3.11 PUBLICITY. The Company, Purchaser and Seller agree that no public release or announcement concerning the transactions contemplated hereby shall be issued by any party, without the prior consent of all of the other parties, hereto (which consent shall not be unreasonably withheld), except such release or announcement as may be required by law or any rule or regulation of any United States or foreign securities exchange, in which case the party required to make the release or announcement shall allow the other parties reasonable time (subject to the requirements of applicable law) to comment on such release or announcement in advance of such issuance. 9 IN WITNESS WHEREOF, each party hereto has duly executed, or has caused this Agreement to be duly executed, as of the date first above written. SELLER: LUCENT TECHNOLOGIES INC. By: /s/ Martina Hund - Mejean -------------------------------- Name: Martina Hund - Mejean Title: Senior Vice President and Treasurer COMPANY: COMMSCOPE, INC. By: /s/ Frank M. Drendel -------------------------------- Name: Frank M. Drendel Title: Chairman and Chief Executive Officer PURCHASER: THE FURUKAWA ELECTRIC CO., LTD. By: /s/ Osamu Sato -------------------------------- Name: Osamu Sato Title: Managing Director 10 EX-2.2 4 ex2_2.txt MEMORANDUM OF UNDERSTANDING Exhibit 2.2 EXECUTION COPY -------------- AMENDMENT NO. 1 TO AMENDED AND RESTATED MEMORANDUM OF UNDERSTANDING This AMENDMENT NO. 1 to the AMENDED AND RESTATED MEMORANDUM OF UNDERSTANDING, dated as of November 15, 2001, by and between The Furukawa Electric Co., Ltd., a corporation organized under the laws of Japan ("FURUKAWA"), and CommScope, Inc., a Delaware corporation ("COMMSCOPE"), (this "AMENDMENT"), is entered into as of October 9, 2002 by and between Furukawa and CommScope. WHEREAS, Furukawa and CommScope have entered into an Amended and Restated Memorandum of Understanding, dated as of November 15, 2001, (the "MOU"); WHEREAS, Lucent Technologies Inc. ("LUCENT"), CommScope and Furukawa have entered into a Financing Agreement, dated as of July 24, 2001, as amended and supplemented by the Supplement to the Financing Agreement, dated as of November 9, 2001 (as supplemented, the "FINANCING AGREEMENT"); WHEREAS, CommScope, Furukawa and Lucent have entered into a Stock Purchase Agreement dated as of October [ ], 2002; and WHEREAS, Furukawa and CommScope desire to amend the definition of "Exercise Period" and the time period for payment of the Exercise Price. NOW, THEREFORE, in consideration of the foregoing and the agreements set forth in this Amendment, and intending to be legally bound hereby, Furukawa and CommScope agree as follows: Section 1. DEFINED TERMS. Defined terms not otherwise defined herein shall have the meanings assigned to such terms in the MOU. Section 2. AMENDMENT TO DEFINITION OF EXERCISE PERIOD; PAYMENT OF EXERCISE PRICE. The following amendments are made to Section 5.6: (a) The definition of "Exercise Period" in Section 5.6 is hereby amended by deleting "commencing on the earlier to occur of (i) May 1, 2004 and (ii) the date that the Cable JV delivers to the CTV Member, in accordance with Section 10.2 of the Amended LLC Agreement, audited financial statements for the fiscal year ending December 31, 2003 and ending on the date that is three months after such date" and replacing it with "commencing on February 15, 2006 and ending on March 15, 2006." (b) All references to "100 calendar days" in Section 5.6 shall be amended by deleting "100 calendar days" and replacing it with "80 calendar days". For the avoidance of doubt, no other amendments are made to Section 5.6. Section 3. EFFECTIVENESS. This Amendment shall be effective as of the date first written above. Section 4. GOVERNING LAW. THIS AMENDEMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, IRRESPECTIVE OF THE CHOICE OF LAWS PRINCIPLES OF THE STATE OF NEW YORK, AS TO ALL MATTERS, INCLUDING MATTERS OF VALIDITY, CONSTRUCTION, EFFECT, ENFORCEABLILITY, PERFORMANCE AND REMEDIES. Section 5. CONTINUATION. Furukawa and CommScope agree and acknowledge that, except as otherwise amended hereby, the MOU continues in full force and effect in accordance with its terms. Section 6. COUNTERPARTS. This Amendment may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 2 IN WITNESS WHEREOF, each party hereto has duly executed, or has caused this Amendment to be duly executed, as of the date first above written. COMMSCOPE, INC. By: /s/ Frank M. Drendel -------------------------- Name: Frank M. Drendel Title: Chairman and Chief Executive Officer THE FURUKAWA ELECTRIC CO., LTD. By: /s/ Osamu Sato -------------------------- Name: Osamu Sato Title: Managing Director 3 EX-4.1 5 ex4_1.txt STOCKHOLDERS AGREEMENT Exhibit 4.1 EXECUTION COPY -------------- STOCKHOLDERS AGREEMENT by and between COMMSCOPE, INC. and THE FURUKAWA ELECTRIC CO., LTD. dated as of October 9, 2002 TABLE OF CONTENTS PAGE ---- Section 1.1. CERTAIN DEFINITIONS......................................1 Section 2.1. REPRESENTATIONS AND WARRANTIES OF COMMSCOPE..............4 Section 2.2. REPRESENTATIONS AND WARRANTIES OF FURUKAWA...............5 Section 3.1. STANDSTILL AGREEMENT.....................................5 Section 4.1 VOTING...................................................8 Section 5.1. COMMON STOCK PUT RIGHT...................................8 Section 6.1. CALL RIGHT...............................................9 Section 7.1. SPECIFIC PERFORMANCE; INJUNCTION; PAYMENT OF COSTS......10 Section 8.1. [INTENTIONALLY OMITTED].................................10 Section 9.1 FURTHER ASSURANCES......................................10 Section 10.1. LEGENDS.................................................11 Section 11.1 NOTICE..................................................12 Section 11.2 ENTIRE AGREEMENT........................................13 Section 11.3 AMENDMENTS AND WAIVERS..................................13 Section 11.4 ASSIGNMENT..............................................13 Section 11.5 GOVERNING LAW; CONSENT TO JURISDICTION..................13 Section 11.6 WAIVER OF JURY TRIAL....................................14 Section 11.7 HEADINGS................................................14 Section 11.8 COUNTERPARTS............................................14 Section 11.9 CONTINUING EFFECT OF MOU................................14 i INDEX OF DEFINED TERMS ---------------------- 13D Group....................................................Section 1.1 Affiliate....................................................Section 1.1 Agreement.......................................................Preamble Amended Rights Agreement.....................................Section 1.1 Beneficial Owner.............................................Section 1.1 Beneficial Ownership.........................................Section 1.1 Beneficially Own...............................................Section 1 Board........................................................Section 1.1 Business Combination.........................................Section 1.1 Call Notice Date..........................................Section 6.1(a) Call Price................................................Section 6.1(a) Call Right................................................Section 6.1(a) Change in Control............................................Section 1.1 Change in Control Transaction................................Section 1.1 Collar Price..............................................Section 6.1(a) Common Stock.................................................Section 1.1 Common Stock Put Amount...................................Section 5.1(a) Common Stock Put Right....................................Section 5.1(a) CommScope.......................................................Preamble control......................................................Section 1.1 Deemed Sold Shares........................................Section 6.1(a) Derivative Securities........................................Section 1.1 Exchange Act.................................................Section 1.1 Fair Market Value............................................Section 1.1 Furukawa........................................................Preamble Furukawa Purchase Transaction.............................Section 6.1(c) Governmental Entity..........................................Section 1.1 Holding Period............................................Section 3.1(c) Incumbent Board..............................................Section 1.1 Market Price..............................................Section 6.1(a) MOU..........................................................Section 1.1 OFS BrightWave LLC Agreement.................................Section 1.1 OFS BrightWave Put...........................................Section 1.1 Outstanding Stock............................................Section 1.1 Outstanding Voting Securities................................Section 1.1 Person.......................................................Section 1.1 Purchase Agreement..............................................Recitals Rights.......................................................Section 1.1 Sale.........................................................Section 1.1 Sell.........................................................Section 1.1 Selling......................................................Section 1.1 Shares.......................................................Section 1.1 Sold.........................................................Section 1.1 Standstill Period.........................................Section 3.1(a) Subsidiary...................................................Section 1.1 Voting Securities............................................Section 1.1 ii STOCKHOLDERS AGREEMENT This STOCKHOLDERS AGREEMENT (this "AGREEMENT"), dated as of October 9, 2002, by and between CommScope, Inc., a Delaware corporation ("COMMSCOPE") and The Furukawa Electric Co., Ltd., a corporation organized under the laws of Japan ("FURUKAWA"). W I T N E S S E T H: WHEREAS, CommScope 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., a Delaware corporation, 7,656,900 shares of Common Stock of CommScope, and WHEREAS, the parties hereto will enter into this Agreement and the parties hereto deem it to be in their best interests to establish and set forth their agreement with respect to certain rights and obligations associated with Furukawa's ownership of Shares (as defined below). NOW, THEREFORE, in consideration of the premises and the mutual covenants and obligations hereinafter set forth, the parties hereto hereby agree as follows: Section 1.1. CERTAIN DEFINITIONS. As used herein, the following terms shall have the following meanings (capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Purchase Agreement): "AFFILIATE" of a Person has the meaning set forth in Rule 12b-2 under the Exchange Act. "AMENDED RIGHTS AGREEMENT" means the Rights Agreement between CommScope and Mellon Investor Services LLC dated as of June 12, 1997, as amended or replaced after the date hereof. "BENEFICIALLY OWN" with respect to any securities means having "beneficial ownership" of such securities (as determined pursuant to Rule 13d-3 under the Exchange Act, as in effect on the date hereof, without limitation by the 60-day provision in paragraph (d)(1)(i) thereof). The terms "BENEFICIAL OWNERSHIP" and "BENEFICIAL OWNER" have correlative meanings. "BOARD" shall mean the Board of Directors of CommScope. "CHANGE IN CONTROL" means, with respect to any specified company, the occurrence of any of the following events: (i) the acquisition by any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of more than 50% of either (A) the then outstanding shares of common stock (the "OUTSTANDING STOCK") of such company or (B) the combined voting power of the then outstanding voting securities entitled to vote generally in the election of directors or managers (the "OUTSTANDING VOTING SECURITIES") of such company; PROVIDED that, for purposes of this clause (i), any acquisition by such company shall not constitute a Change in Control of such company; (ii) individuals who, as of the date hereof, constitute the board of directors (the "INCUMBENT BOARD") of such company cease for any reason to constitute at least 50% of the board of directors of such company; PROVIDED that any individual becoming a director subsequent to the date hereof whose election, or nomination for election by such company's stockholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board (but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a individual, entity or group (as defined above) other than the board of directors of such company) shall be considered a member of the Incumbent Board; (iii) consummation by such company of a reorganization, merger or consolidation or sale or other disposition of all or substantially all of its assets or the acquisition of assets or stock of another corporation (a "BUSINESS COMBINATION"), in each case, unless, following such Business Combination, all or substantially all of the individuals and entities who were the beneficial owners, respectively, of the Outstanding Stock and Outstanding Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, 50% or more of the then Outstanding Stock and the combined voting power of the then Outstanding Voting Securities, as the case may be, of the corporation or other entity resulting from such Business Combination; or (iv) approval by the stockholders of such company of a complete liquidation or dissolution of such company. "CHANGE IN CONTROL TRANSACTION" means a transaction which, if consummated, would result in a Change in Control of CommScope. "COMMON STOCK" means the common stock, par value $0.01 per share, of CommScope. 2 "CONTROL" with respect to any Person means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise. "DERIVATIVE SECURITIES" means any subscriptions, options, conversion rights, warrants, phantom stock rights or other agreements, securities or commitments of any kind obligating CommScope to issue, grant, deliver or sell, or cause to be issued, granted, delivered or sold (i) any Voting Securities of CommScope, (ii) any securities convertible into or exchangeable for any Voting Securities of CommScope, or (iii) any obligations measured by the price or value of any shares of capital stock of CommScope. "EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended and the rules and regulations promulgated thereunder. "FAIR MARKET VALUE" means, with respect to any date, the aggregate value determined by multiplying (x) the average per share closing price of the Common Stock as reported on the New York Stock Exchange Composite Transaction Tape (as reported by THE WALL STREET JOURNAL (Northeast edition) or if not reported thereby, by any other authoritative source) for the ten (10) trading days immediately preceding such date by (y) the number of Shares Beneficially Owned by Furukawa and Furukawa's Affiliates. "GOVERNMENTAL ENTITY" means any government or any agency, bureau, board, commission, court, department, political subdivision, tribunal, or other instrumentality of any government (including any regulatory or administrative agency), whether federal, state or local, domestic or foreign. "OFS BRIGHTWAVE PUT" means the right of CommScope 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 CommScope and Furukawa dated as of November 15, 2001 (as amended by Amendment No. 1 dated as of October 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, association, partnership, trust or other entity or organization, including any Governmental Entity. "RIGHTS means the Rights as defined in the Amended Rights Agreement. 3 "SELL" means as to any shares of Common Stock, to sell, or in any other way directly or indirectly, transfer, assign, distribute, pledge, encumber or otherwise dispose of, either voluntarily or involuntarily; the terms "SALE", "SELLING" and "SOLD" shall have meanings correlative to the foregoing. For the avoidance of doubt, any transaction that results in any Subsidiary of Furukawa's which Beneficially Owns Shares, ceasing to be a Subsidiary of Furukawa, will constitute a Sale of Shares for purposes of this Agreement. "SHARES" means the shares of Common Stock purchased by Furukawa pursuant to the Purchase Agreement. "SUBSIDIARY" of any Person means any corporation or other legal entity of which such Person, either alone or through or together with any other Subsidiary owns directly or indirectly more than 50% of the stock or other equity interests, the holders of which are generally entitled to vote for the election of members of the board of directors or other governing body of such corporation or other legal entity. "13D GROUP" shall mean any group of Persons who, with respect to those acquiring, holding, voting or disposing of Voting Securities would, assuming ownership of the requisite percentage thereof, be required under Section 13(d) of the Exchange Act and the rules and regulations thereunder to file a statement on Schedule 13D with the Securities and Exchange Commission as a "person" within the meaning of Section 13(d)(3) of the Exchange Act, or who would be considered a "person" for purposes of Section 13(g)(3) of the Exchange Act. "VOTING SECURITIES" means the shares of Common Stock and any other securities of CommScope entitled to vote generally for the election of directors, and any securities (other than employee stock options) which are convertible into, or exercisable or exchangeable for, Voting Securities. Section 2.1. REPRESENTATIONS AND WARRANTIES OF COMMSCOPE. CommScope represents and warrants to Furukawa as follows: (a) ORGANIZATION, STANDING AND POWER. CommScope is duly organized, validly existing and in good standing under the laws of the State of Delaware and has all requisite power and authority to own, lease and otherwise hold and operate its assets and to conduct its business as it is currently being conducted. (b) AUTHORIZATION; ENFORCEABILITY. (i) CommScope has full power and authority to enter into and perform this Agreement; (ii) the execution and delivery of this Agreement by CommScope and the consummation by it of the transactions contemplated hereby have been duly authorized by all necessary corporate action; (iii) this Agreement 4 has been duly executed and delivered by CommScope; and (iv) this Agreement constitutes a valid and binding obligation of CommScope enforceable against CommScope in accordance with its terms. Section 2.2. REPRESENTATIONS AND WARRANTIES OF FURUKAWA. Furukawa represents and warrants to CommScope as follows: (a) ORGANIZATION AND POWER. Furukawa is duly organized and validly existing under the laws of Japan and has all the requisite power and authority to own, lease and otherwise hold and operate its assets and to conduct its business as it is currently being conducted. (b) AUTHORIZATION; ENFORCEABILITY. (i) Furukawa has full power and authority to enter into and perform this Agreement; (ii) the execution and delivery of this Agreement by Furukawa and the consummation by it of the transactions contemplated hereby have been duly authorized by all necessary corporate action; (iii) this Agreement has been duly executed and delivered by Furukawa; and (iv) this Agreement constitutes a valid and binding obligation of Furukawa enforceable against Furukawa in accordance with its terms. Section 3.1. STANDSTILL AGREEMENT. (a) During the period commencing on the date hereof and ending on the tenth anniversary of this Agreement (the "STANDSTILL PERIOD"), without the prior written consent of CommScope, Furukawa shall not, and Furukawa shall cause Furukawa's Affiliates not to, directly or indirectly, alone or in concert with others: (i) acquire, offer or propose to acquire or agree to acquire, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other 13D Group or otherwise, Beneficial Ownership of any Voting Securities, Derivative Securities or any other securities of CommScope or any rights to acquire (whether currently, upon lapse of time, following the satisfaction of any conditions, upon the occurrence of any event or any combination of the foregoing) any Voting Securities, other than (a) the purchase of Voting Securities expressly permitted by the Purchase Agreement or (b) the acquisition of Voting Securities, Derivative Securities or any other securities of CommScope or any rights to acquire any Voting Securities as a result of any stock split, stock dividends or other distributions, recapitalizations or offerings made available by CommScope to holders of Voting Securities generally; (ii) propose or seek to effect any merger, business combination, restructuring, recapitalization or similar transaction involving CommScope or any of its 5 Subsidiaries or the sale or other disposition outside the ordinary course of business of any portion of the assets of CommScope or any of its Subsidiaries other than CommScope's Membership Interest in OFS BrightWave, LLC (as defined in the OFS BrightWave, LLC Agreement); (iii) deposit any Voting Securities in a voting trust or subject any Voting Securities to any arrangement or agreement with respect to the voting of such Voting Securities; (iv) seek election to, seek to place a representative on, or seek the removal of any member of, the Board; (v) engage in any "solicitation" (within the meaning of Rule 14a-1 under the Exchange Act) of proxies or consents (whether or not relating to the election or removal of directors) with respect to CommScope, or become a "participant" in any "election contest" (within the meaning of Rule 14a-11 under the Exchange Act) or, unless the execution by Furukawa or its Affiliates is first approved by the Board, execute any written consent in lieu of a meeting of the holders of any class of Voting Securities that is solicited by or on behalf of any shareholder of CommScope; (vi) call or seek to have called any meeting of the stockholders of CommScope; (vii) initiate, propose or otherwise solicit stockholders for the approval of any shareholder proposal (as described in Rule 14a-8 under the Exchange Act or otherwise) with respect to CommScope; (viii) form, join or in any way participate in or assist in the formation of a 13D Group with respect to any Voting Securities other than a 13D Group consisting solely of Furukawa and its respective Subsidiaries; (ix) otherwise act, alone or in concert with others, to seek control or influence the management, the Board or the policies of CommScope in a manner designed or having the deliberate effect of circumventing the restrictions otherwise imposed under this Section 3.1(a); (x) disclose or publicly announce any intention, plan or arrangement inconsistent with the foregoing; or (xi) advise, assist or encourage or finance any other persons in connection with any of the foregoing types of activities. 6 (b) Notwithstanding the foregoing, the provisions of paragraph (a) of this Section 3.1 shall cease to apply if: (i) CommScope enters into a definitive agreement contemplating a Change in Control Transaction or consummates a Change in Control Transaction; (ii) the Board publicly announces its intention to solicit or publicly solicits any proposal or publicly approves, accepts, authorizes or recommends to stockholders of CommScope their approval of or the conveyance of shares pursuant to a Change in Control Transaction; or (iii) in connection with a bona fide tender or exchange offer made by any Person or 13D Group, other than a 13D Group consisting solely of Furukawa and its respective Subsidiaries, the Board determines or resolves to, or announces its intention to, or is ordered or directed by any Governmental Entity to, redeem or modify (to render inapplicable thereto) the Rights or the Amended Rights Agreement (or a substantially similar agreement) or the Rights or the Amended Rights Agreement (or a substantially similar agreement) does not, for any other reason, apply to such tender or exchange offer or (iv) Furukawa and Furukawa's Affiliates Beneficially Own in the aggregate less than 2.5% of the outstanding Common Stock; PROVIDED, HOWEVER that if Furukawa and Furukawa's Affiliates at any time during the Standstill Period Beneficially Own in the aggregate 2.5% or more of the outstanding Common Stock, the provision of paragraph (a) of this Section 3.1 will apply for the balance of the Standstill Period or, if earlier, until such time that Furukawa and Furukawa's Affiliates again Beneficially Own in the aggregate less than 2.5% of the outstanding Common Stock. (c) Furukawa agrees that from the date hereof until the earliest of: (i) March 16, 2006; (ii) the date on which CommScope delivers written notice of exercise of the OFS BrightWave Put pursuant to Section 5.6 of the MOU; (iii) the date on which CommScope enters into a definitive agreement contemplating a Change in Control Transaction or consummates a Change in Control Transaction or (iv) in connection with a bona fide tender or exchange offer made by any Person or 13D Group, other than a 13D Group consisting solely of Furukawa and its respective Subsidiaries, the Board determines or resolves to, or announces its intention to, or is ordered or directed by any Governmental Entity to, redeem or modify (to render inapplicable thereto) the Rights or the Amended Rights Agreement (or a substantially similar agreement) or the Rights or the Amended Rights Agreement (or a substantially similar agreement) does not, for any other reason, apply to such tender or exchange offer (such period from the date thereof to the earliest of the events described in clauses (i)-(iv) being referred to as the "Holding Period"), Furukawa shall not, and Furukawa shall cause Furukawa's Affiliates not to, Sell (or enter into any agreement or arrangement to Sell) any Shares to any Person other than the Company without the prior written consent of the Board except Sales (A) to Subsidiaries of Furukawa or (B) pursuant to a Change in Control Transaction, tender offer or exchange offer approved by the Board. At any time, after the end of the Holding Period, Furukawa or its Affiliates may Sell all or any part of the Shares Beneficially Owned by it, subject to compliance with applicable federal and state securities laws. 7 (d) Notwithstanding the foregoing, if CommScope or its Subsidiaries effect a Direct Transfer (as defined in the OFS BrightWave, LLC Agreement) of all or any part of its Membership Interests (as defined in the OFS BrightWave, LLC Agreement) then, on or after the date such Direct Transfer is completed, Furukawa or its Affiliates shall have the right, but not the obligation, to Sell, subject to compliance with applicable federal and state securities laws, all or any part of the Shares Beneficially Owned by it to any Person upon ten calendar days written notice to CommScope of such Sale. Section 4.1 VOTING. Furukawa agrees that from the date hereof until the earlier of (i) the date that the provisions of Section 3.1(a) of this Agreement cease to apply to Furukawa and its Affiliates pursuant to Section 3.1(b) of this Agreement and (ii) the date on which Furukawa and Furukawa's Affiliates Beneficially Own in the aggregate less than 5% of the outstanding Common Stock, at any annual special or any other meeting of stockholders of CommScope, however called or in respect of which action may be taken by written consent, Furukawa shall, and Furukawa shall cause each of Furukawa's Affiliates that Beneficially Owns Shares to: (i) appear at such meeting or otherwise cause the Shares Beneficially Owned by them to be counted as present thereat for purposes of establishing a quorum, and (ii) vote in person or by proxy, all such Shares Beneficially Owned by Furukawa and Furukawa's Affiliates either, at Furukawa's discretion, (A) in favor of the approval and adoption of any matter approved or recommended by the Board and any action required in furtherance thereof and against any matter not approved or recommended by the Board or (B) in the same proportion as the votes cast by or on behalf of the holders CommScope's outstanding Common Stock other than Furukawa and Furukawa's Affiliates; PROVIDED, HOWEVER that if Furukawa and Furukawa's Affiliates at any time during the Standstill Period Beneficially Own in the aggregate 5% or more of the outstanding Common Stock, the provisions of this Section 4.1 will apply for the balance of the Standstill Period or, if earlier, until such time that Furukawa and Furukawa's Affiliates again Beneficially Own in the aggregate less than 5% of the outstanding Common Stock. Section 5.1. COMMON STOCK PUT RIGHT. (a) If and only if CommScope delivers written notice of exercise of the OFS BrightWave Put pursuant to Section 5.6 of the MOU, Furukawa and Furukawa's Affiliates will have the one-time right, but not the obligation (the "COMMON STOCK PUT RIGHT") to require, by not less than 40 days written notice, CommScope to purchase all of the Shares Beneficially Owned by them for an aggregate price of $45,788,262 (the "COMMON STOCK PUT AMOUNT"); PROVIDED, HOWEVER that if Furukawa or Furukawa's Affiliates Sell any Shares prior to the exercise of the Common Stock Put Right, the Common Stock Put Amount shall be reduced by multiplying the Common Stock Put Amount in effect immediately prior to such Sale by a fraction the numerator of which is 8 the number of Shares Beneficially Owned by Furukawa and Furukawa's Affiliates immediately after such Sale and the denominator of which is the number of Shares Beneficially Owned by Furukawa and Furukawa's Affiliates immediately prior to such Sale. (b) If Furukawa exercises the Common Stock Put Right, the closing of the OFS BrightWave Put and the Common Stock Put Right shall occur simultaneously and CommScope shall pay Furukawa the Common Stock Put Amount simultaneously on the date that Furukawa pays CommScope the Exercise Price (as defined in the MOU) by wire transfer of immediately available federal funds to an account designated by Furukawa no later than five days prior to the date of such payment. Amounts to be paid by CommScope to Furukawa pursuant to Section 5.1 of this Agreement shall be netted against amounts to be paid by Furukawa to CommScope pursuant to Section 5.6 of the MOU and the net amount due will be paid in cash. Section 6.1. CALL RIGHT. (a) CommScope, at any time from the date hereof, shall have the right, but not the obligation (the "CALL RIGHT") to purchase all, but not less than all, of the Shares Beneficially Owned by Furukawa and Furukawa's Affiliates (other than Shares which Furukawa and Furukawa's Affiliates have agreed to Sell to any Person (other than an Affiliate of Furukawa) pursuant to a definitive agreement entered into in accordance with the terms hereof and of which CommScope has received at least two business days written notice of such definitive agreement (the "DEEMED SOLD SHARES")) for an aggregate price of $45,788,262 (the "CALL PRICE"), subject to adjustment as provided below, by not less than ten and not more than twenty calendar days written notice (the "CALL NOTICE DATE"); PROVIDED, HOWEVER that if on the Call Notice Date, the Fair Market Value is greater than $59,524,741, (the "COLLAR PRICE"), subject to adjustment as provided below, then the aggregate purchase price for the called Shares will be equal to 90% of the Fair Market Value (the "MARKET PRICE"). Furukawa shall not, and shall cause its Affiliates not to, Sell or enter into any agreement or arrangement to Sell any Shares to any Person other than the Company from and after the Call Notice Date. If Furukawa or Furukawa's Affiliates Sell any Shares prior to the Call Notice Date, then the Call Price and the Collar Price shall be reduced by multiplying the Call Price and the Collar Price in effect immediately prior to such Sale by a fraction, the numerator of which is the number of Shares Beneficially Owned by Furukawa and Furukawa's Affiliates immediately after such Sale and the denominator of which is the number of Shares Beneficially Owned by Furukawa and Furukawa's Affiliates immediately prior to such Sale, it being understood and agreed that Deemed Sold Shares shall be treated as Sold for purposes of any adjustment to the Call Price and Collar Price. (b) Within ten days of the Call Date, Furukawa and Furukawa's Affiliates will deliver the Shares Beneficially Owned by them (other than the Deemed Sold Shares) to CommScope and CommScope shall pay Furukawa or its designees the Call Price, or if applicable the Market Price, by wire transfer of immediately available federal funds to an account specified by Furukawa no later than two days prior to the date of such payment. (c) Notwithstanding the foregoing, at any time after the provisions of Section 3.1(c) of this Agreement cease to apply to Furukawa and its Affiliates, if Furukawa and/or its Affiliates in a single transaction purchase shares of Common Stock equal to 1% or more of the then outstanding Common Stock ("Furukawa Purchase Transaction"), then CommScope shall not be entitled to exercise the Call Right if CommScope's exercise of the Call Right would require the disgorgement of profit by Furukawa or its Affiliates pursuant to Section 16 of the Exchange Act, it being understood and agreed that CommScope shall only be required to postpone the exercise of the Call Right with respect to one Furukawa Purchase Transaction. 9 Section 7.1. SPECIFIC PERFORMANCE; INJUNCTION; PAYMENT OF COSTS. (a) The parties agree that it is impossible to determine the monetary damages which would accrue to CommScope or Furukawa by reason of the failure of any party hereto to perform any of its obligations under this Agreement requiring the performance of an act other than the payment of money only. Therefore, if any party to this Agreement shall institute an action or proceeding to enforce the provisions of this Agreement against any other party to this Agreement not performing such obligations, any tribunal hearing such cause shall have the power to render an award directing one or more parties hereto to specifically perform its obligations hereunder in accordance with the terms and conditions of this Agreement. (b) In the event of a breach or threatened breach by any party of any of the provisions of this Agreement, the other party to this Agreement, shall be entitled to seek an injunction restraining such breaching party from any such breach. The availability of these remedies shall not prohibit any party from pursuing any other remedies for such breach or threatened breach, including the recovery of damages from the breaching party. Section 8.1. [Intentionally Omitted]. Section 9.1 FURTHER ASSURANCES. At any time or from time to time after the date hereof, the parties agree to cooperate with each other, and at the request of any other party, to execute and deliver any further instruments or documents and to take all such further action as the other party may reasonably request in order to evidence or effectuate the consummation of the transactions contemplated hereby and to otherwise carry out the intent of the parties hereunder. Section 10.1. LEGENDS. Each certificate representing Shares shall bear a legend containing the following words: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS. 10 THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT IN COMPLIANCE WITH THE SECURITIES ACT OF 1933, AS AMENDED, AND ALL APPLICABLE STATE SECURITIES LAWS. IN ADDITION, THE SECURITIES REPRESENTED BY THIS CERTIFICATE AND THE VOTING AND TRANSFER OF SUCH SECURITIES ARE SUBJECT TO THE PROVISIONS OF A STOCKHOLDERS AGREEMENT, DATED AS OF OCTOBER 9, 2002, BY AND BETWEEN COMMSCOPE, INC., AND THE FURUKAWA ELECTRIC CO., LTD. A COPY OF WHICH IS ON FILE IN THE OFFICE OF COMMSCOPE, INC. AND AVAILABLE WITHOUT CHARGE. The requirement that the first paragraph of the above legends be placed upon certificates evidencing any such Shares shall cease and terminate upon the earlier of the following events: (i) when such Shares are transferred in a public offering under the Securities Act; or (ii) when such Shares are Sold to a Person (other than a Subsidiary of Furukawa) in any other transaction permitted by this Agreement if Furukawa delivers to CommScope an opinion of its counsel, which counsel and opinion shall be reasonably satisfactory to CommScope to the effect that such legend is no longer necessary in order to protect CommScope against a violation by it of federal and state securities laws and "blue sky" laws upon any Sale or other disposition of such Shares without registration thereunder. The requirement that the second paragraph of the legends above be placed upon certificates evidencing any such Shares shall cease and terminate upon the earlier of the following events: (i) when such Shares are Sold to any Person in any Sale permitted by this Agreement (other then a Sale by Furukawa to a Subsidiary of Furukawa) or (ii) the provisions of Sections 3.1 and 4.1 shall no longer be applicable to such Shares. It being understood and agreed that such legend will again be placed upon certificates evidencing Shares if Sections 3.1 or Section 4.1 become applicable thereafter by their terms and Furukawa shall, and shall cause its Subsidiaries to, cooperate in placing such legend upon certificates evidencing Shares in that event. Upon the occurrence of any event requiring the removal of a legend hereunder, CommScope, upon the surrender of certificates containing such legend, shall, at its own expense, deliver to the holder of any such Shares as to which the requirement for such legend shall have terminated, one or more new certificates evidencing such Shares not bearing such legend. Section 11.1 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 11 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 12 With a copy to: Masuda & Ejiri 399 Park Avenue, 18th Floor New York, New York 10022 Attention: Junji Masuda Facsimile: (212) 486-2614 Section 11.2 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement among the parties hereto with respect to the subject matters hereof and supercedes all prior understandings or agreements, oral or written, among the parties hereto. Section 11.3 AMENDMENTS AND WAIVERS. This Agreement may only be amended, modified, supplemented or a provision hereof waived, by a written instrument executed by the party against whom such change, waiver or amendment is sought to be enforced. Section 11.4 ASSIGNMENT. This Agreement will apply to, inure to the benefit of, and be binding upon and enforceable against the parties to this Agreement and their respective legal representatives, successors and permitted assigns. No party to this Agreement may assign this Agreement without the prior written consent of all of the other parties hereto. Section 11.5 GOVERNING LAW; CONSENT TO JURISDICTION. 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 except in such courts), and further agrees that service of any process, summons, notice or document by United States registered mail to its respective address set forth in Section 11.1 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. 13 Section 11.6 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 11.6. Section 11.7 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. Section 11.8 COUNTERPARTS. This Agreement may be executed in any number of separate counterparts, each of which will be deemed to be an original, but which together will constitute one and the same instrument. Section 11.9 CONTINUING EFFECT OF MOU. This Agreement will not affect the rights and obligations of CommScope and Furukawa under the MOU, which shall remain in full force and effect. 14 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written. COMMSCOPE, INC. By: /s/ Frank M. Drendel -------------------------------- Name: Frank M. Drendel Title: Chairman and Chief Executive Officer THE FURUKAWA ELECTRIC CO., LTD. By: /s/ Osamu Sato -------------------------------- Name: Osamu Sato Title: Managing Director 15 EX-4.2 6 ex4_2.txt REGISTRATION RIGHTS AGREEMENT Exhibit 4.2 EXECUTION COPY -------------- REGISTRATION RIGHTS AGREEMENT Dated as of October 9, 2002 by and between CommScope, Inc. and The Furakawa Electric Co., Ltd. TABLE OF CONTENTS PAGE ---- 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 i 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. 1 "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 2 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. ------------------- 2.1. DEMAND REGISTRATIONS. -------------------- (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 3 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. ------------------------------------------------------- (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 4 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. 5 2.3. PIGGYBACK REGISTRATIONS. ----------------------- (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. 6 2.4. ALLOCATION OF SECURITIES INCLUDED IN REGISTRATION STATEMENT. ----------------------------------------------------------- (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 7 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. ----------------------- 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 8 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 9 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. 10 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 ------- 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 19 -----END PRIVACY-ENHANCED MESSAGE-----