Exhibit 4.3
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REGISTRATION RIGHTS AGREEMENT
Dated As of November 24, 2003
among
GENERAL CABLE CORPORATION
and
UBS SECURITIES LLC
and
XXXXXXX XXXXX & CO.,
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
As Representatives of the Initial Purchasers named herein
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made
and entered into this 24th day of November, 2003, among General Cable
Corporation, a Delaware corporation (the "Company") and UBS Securities LLC
("UBS"), Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx"),
and each other Initial Purchaser set forth on Schedule A attached hereto
(collectively, the "Initial Purchasers"), for whom UBS and Xxxxxxx Xxxxx are
acting as representatives (the "Representatives").
This Agreement is made pursuant to the Purchase Agreement,
dated November 18, 2003, by and among the Company and the Initial Purchasers
(the "Purchase Agreement"), which provides for the sale by the Company to the
Initial Purchasers of 1,800,000 shares of the Company's 5.75% Series A
Redeemable Convertible Preferred Stock, par value $0.01 per share (the
"Preferred Stock"), and with respect to the grant by the Company to the Initial
Purchasers, acting severally and not jointly, of the option described in Section
2(b) of the Purchase Agreement to purchase all or any part of 270,000 additional
shares of Preferred Stock. The aforesaid 1,800,000 shares of Preferred Stock
(the "Initial Securities") to be purchased by the Initial Purchasers and all or
any part of the 270,000 shares of Preferred Stock subject to the option
described in Section 2(b) hereof (the "Option Securities") are hereinafter
called, collectively, the "Securities". In order to induce the Initial
Purchasers to enter into the Purchase Agreement, the Company has agreed to
provide to the Initial Purchasers and their direct and indirect transferees the
registration rights set forth in this Agreement. The execution of this Agreement
is a condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions. As used in this Agreement, the following
capitalized defined terms shall have the following meanings:
"1933 Act" shall mean the Securities Act of 1933, as amended
from time to time.
"1934 Act" shall mean the Securities Exchange Act of l934, as
amended from time to time.
"Black-out Periods" shall mean suspensions of the
effectiveness of the Shelf Registration Statement as permitted by Section 3
hereof.
"Certificate of Designations" shall mean the Certificate of
Designations relating to the Preferred Stock, which sets forth the powers,
preferences and rights, and the qualifications, limitations and restrictions of
the Preferred Stock.
"Closing Date" shall mean the Closing Time as defined in the
Purchase Agreement.
"Company" shall have the meaning set forth in the preamble and
shall also include the Company's successors.
"Depositary" shall mean The Depository Trust Company, or any
other depositary appointed by the Company, provided, however, that such
depositary must have an address in the Borough of Manhattan, in the City of New
York.
"Holder" shall mean an Initial Purchaser, for so long as it
owns any Registrable Securities, and each of its successors, assigns and direct
and indirect transferees who become registered owners of Registrable Securities
and each Participating Broker-Dealer that holds Exchange Securities for so long
as such Participating Broker-Dealer is required to deliver a prospectus meeting
the requirements of the 1933 Act in connection with any resale of such Exchange
Securities.
"Initial Purchaser" or "Initial Purchasers" shall have the
meaning set forth in the preamble.
"Majority Holders" shall mean the Holders of a majority of the
shares of outstanding Registrable Securities; provided that whenever the consent
or approval of Holders of a specified percentage of Registrable Securities is
required hereunder, Registrable Securities held by the Company and other
obligors on the Securities or any Affiliate (as defined in the Certificate of
Designations) of the Company shall be disregarded in determining whether such
consent or approval was given by the Holders of such required percentage amount.
"Participating Broker-Dealer" shall mean any of Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated and UBS Securities LLC and any other
broker-dealer which makes a market in the Securities.
"Person" shall mean an individual, partnership (general or
limited), corporation, limited liability company, trust or unincorporated
organization, or a government or agency or political subdivision thereof.
"Prospectus" shall mean the prospectus included in a Shelf
Registration Statement, including any preliminary prospectus, and any such
prospectus as amended or supplemented by any prospectus supplement, and by all
other amendments and supplements to a prospectus, including post-effective
amendments, and in each case including all material incorporated by reference
therein.
"Purchase Agreement" shall have the meaning set forth in the
preamble.
"Registrable Securities" shall mean the Securities; provided,
however, that Securities shall cease to be Registrable Securities when (i) a
Shelf Registration Statement with respect to such Securities shall have been
declared effective under the 1933 Act and such Securities shall have been
disposed of pursuant to such Shelf Registration Statement, (ii) such Securities
have been sold to the public pursuant to Rule l44 (or any similar provision then
in force, but not Rule 144A) under the 1933 Act or (iii) such Securities shall
have ceased to be outstanding.
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"Registration Expenses" shall mean any and all expenses
incident to performance of or compliance by the Company with this Agreement,
including without limitation: (i) all SEC, stock exchange or National
Association of Securities Dealers, Inc. (the "NASD") registration and filing
fees, including, if applicable, the fees and expenses of any "qualified
independent underwriter" (and its counsel) that is required to be retained by
any holder of Registrable Securities in accordance with the rules and
regulations of the NASD, (ii) all fees and expenses incurred in connection with
compliance with state securities or blue sky laws and compliance with the rules
of the NASD (including reasonable fees and disbursements of counsel for any
underwriters or Holders in connection with blue sky qualification of any of the
Registrable Securities and any filings with the NASD), (iii) all expenses of any
Persons in preparing or assisting in preparing, word processing, printing and
distributing any Shelf Registration Statement, any Prospectus, any amendments or
supplements thereto, any underwriting agreements, securities sales agreements
and other documents relating to the performance of and compliance with this
Agreement, (iv) all fees and expenses incurred in connection with the listing,
if any, of any of the Registrable Securities on any securities exchange or
exchanges, (v) all rating agency fees, (vi) the fees and disbursements of
counsel for the Company and of the independent public accountants of the
Company, including the expenses of any special audits or "cold comfort" letters
required by or incident to such performance and compliance, (vii) the reasonable
fees and disbursements of Xxxxxx Xxxxxx & Xxxxxxx LLP, special counsel
representing the Holders of Registrable Securities and (viii) any fees and
disbursements of the underwriters customarily required to be paid by issuers or
sellers of securities and the fees and expenses of any special experts retained
by the Company in connection with any Shelf Registration Statement, but
excluding underwriting discounts and commissions and transfer taxes, if any,
relating to the sale or disposition of Registrable Securities by a Holder.
"SEC" shall mean the Securities and Exchange Commission or any
successor agency or government body performing the functions currently performed
by the United States Securities and Exchange Commission.
"Shelf Registration" shall mean a registration effected
pursuant to Section 2.1 hereof.
"Shelf Registration Statement" shall mean a "shelf"
registration statement of the Company pursuant to the provisions of Section 2.1
of this Agreement which covers all of the Registrable Securities on an
appropriate form under Rule 415 under the 1933 Act, or any similar rule that may
be adopted by the SEC, and all amendments and supplements to such registration
statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material incorporated
by reference therein.
"Transfer Agent" shall mean the transfer agent with respect to
the Preferred Stock.
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2. Registration Under the 1933 Act.
2.1 Shelf Registration. The Company shall, for the benefit of
the Holders, at the Company's cost:
(a) As promptly as practicable, use its reasonable best
efforts to file with the SEC no later than 90 days after the original
issue of the Registrable Securities, a Shelf Registration Statement
relating to the offer and sale of the Registrable Securities by the
Holders from time to time in accordance with the methods of
distribution elected by the Majority Holders participating in the Shelf
Registration and set forth in such Shelf Registration Statement.
(b) Use its reasonable best efforts to cause the Shelf
Registration Statement to be declared effective under the 1933 Act
within 180 days of the Closing Date.
(c) Use its reasonable best efforts to keep the Shelf
Registration Statement continuously effective, other than during
Black-out Periods, in order to permit the Prospectus forming part
thereof to be usable by Holders for a period of two years from the date
the Shelf Registration Statement is declared effective by the SEC, or
for such shorter period that will terminate when all Registrable
Securities covered by the Shelf Registration Statement have been sold
pursuant to the Shelf Registration Statement or cease to be outstanding
or otherwise to be Registrable Securities (the "Effectiveness Period");
provided, however, that the Effectiveness Period in respect of the
Shelf Registration Statement shall be extended to the extent required
to permit dealers to comply with the applicable prospectus delivery
requirements of Rule 174 under the 1933 Act and as otherwise provided
herein.
(d) Notwithstanding any other provisions hereof, use their
best efforts to ensure that (i) any Shelf Registration Statement and
any amendment thereto and any Prospectus forming part thereof and any
supplement thereto complies in all material respects with the 1933 Act
and the rules and regulations thereunder, (ii) any Shelf Registration
Statement and any amendment thereto does not, when it becomes
effective, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading and (iii) any Prospectus
forming part of any Shelf Registration Statement, and any supplement to
such Prospectus (as amended or supplemented from time to time), does
not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements, in light of
the circumstances under which they were made, not misleading.
The Company shall not permit any securities other than
Registrable Securities to be included in the Shelf Registration Statement. The
Company further agrees, if necessary, to supplement or amend the Shelf
Registration Statement, as required by Section 3(b) below, and to furnish to the
Holders of Registrable Securities copies of any such supplement or amendment
promptly after its being used or filed with the SEC.
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2.2 Expenses. The Company shall pay all Registration Expenses
in connection with the registration pursuant to Section 2.0 or 2.1. Each Holder
shall pay all underwriting discounts and commissions and transfer taxes, if any,
relating to the sale or disposition of such Holder's Registrable Securities
pursuant to the Shelf Registration Statement.
2.3 Effectiveness. (a) The Company will be deemed not have
used its reasonable best efforts to cause the Shelf Registration Statement to
become, or to remain, effective during the requisite period if they voluntarily
take any action that would, or omit to take any action which omission would,
result in any such Shelf Registration Statement not being declared effective or
in the Holders of Registrable Securities covered thereby not being able to offer
and sell such Registrable Securities during that period as and to the extent
contemplated hereby, unless such action is required by applicable law.
(b) A Shelf Registration Statement pursuant to Section 2.1
hereof will not be deemed to have become effective unless it has been declared
effective by the SEC; provided, however, that if, after it has been declared
effective, the offering of Registrable Securities pursuant to a Shelf
Registration Statement is interfered with by any stop order, injunction or other
order or requirement of the SEC or any other governmental agency or court, such
Shelf Registration Statement will be deemed not to have become effective during
the period of such interference, until the offering of Registrable Securities
pursuant to such Shelf Registration Statement may legally resume.
2.4 Dividends. The Certificate of Designations executed in
connection with the Securities will provide that in the event that either (a)
the Shelf Registration Statement is not filed with the Commission on or prior to
the 90th calendar day following the date of the original issue of the Securities
or (b) the Shelf Registration Statement is not declared effective on or prior to
the 180th calendar day following the date of original issue of the Securities
(such event referred to above, a "Registration Default"), the dividend rate for
the Securities shall be increased ("Additional Dividends") by one-quarter of one
percent (0.25%) per annum upon the occurrence of each Registration Default,
which rate will increase by one quarter of one percent (0.25%) each 90-day
period that such Additional Dividends continues to accrue under any such
circumstance, provided that the maximum aggregate increase in the dividend rate
will in no event exceed one percent (1%) per annum. Following the cure of all
Registration Defaults the accrual of Additional Dividends will cease and the
dividend rate will revert to the original rate.
If the Shelf Registration Statement is unusable by the Holders
for any reason, and the aggregate number of days in any consecutive twelve-month
period for which the Shelf Registration Statement shall not be usable exceeds 30
days in the aggregate, then the dividend rate for the Securities will be
increased by 0.25% per annum of the liquidation preference of the Securities for
the first 90-day period (or portion thereof) beginning on the 31st such date
that such Shelf Registration Statement ceases to be usable, which rate shall be
increased by an additional 0.25% per annum of the liquidation preference of the
Securities at the beginning of each subsequent 90-day period, provided that the
maximum aggregate increase in the dividend rate will in no event exceed one
percent (1%) per annum. Any amounts payable under this paragraph shall also be
deemed "Additional Dividends" for purposes of this Agreement. Upon the Shelf
Registration Statement once again becoming usable, the dividend rate for the
Securities will be reduced to the original dividend rate if the Company is
otherwise in compliance with this Agreement at such time. Additional Dividends
shall be computed based on the actual number of days elapsed in each 90-day
period in which the Shelf Registration Statement is unusable.
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The Company shall notify the Transfer Agent within three
business days after each and every date on which an event occurs in respect of
which Additional Dividends are required to be paid (an "Event Date"). Additional
Dividends shall be paid by depositing with the Transfer Agent, in trust, for the
benefit of the Holders of Registrable Securities, on or before the applicable
quarterly dividend payment date, immediately available funds in sums sufficient
to pay the Additional Dividends then due. The Additional Dividends due shall be
payable on each dividend payment date to the record Holder of Securities
entitled to receive the dividend payment to be paid on such date as set forth in
the Certificate of Designations. Each obligation to pay Additional Dividends
shall be deemed to accrue from and including the day following the applicable
Event Date.
3. Registration Procedures. In connection with the obligations
of the Company with respect to the Shelf Registration Statements pursuant to
Sections 2.1, the Company shall:
(a) prepare and file with the SEC a Shelf Registration
Statement, within the relevant time period specified in Section 2, on
the appropriate form under the 1933 Act, which form (i) shall be
selected by the Company, (ii) shall be available for the sale of the
Registrable Securities by the selling Holders thereof, (iii) shall
comply as to form in all material respects with the requirements of the
applicable form and include or incorporate by reference all financial
statements required by the SEC to be filed therewith or incorporated by
reference therein, and (iv) shall comply in all respects with the
requirements of Regulation S-T under the 1933 Act, and use its
reasonable best efforts to cause such Shelf Registration Statement to
become effective and remain effective in accordance with Section 2
hereof;
(b) prepare and file with the SEC such amendments and
post-effective amendments to the Shelf Registration Statement as may be
necessary under applicable law to keep such Shelf Registration
Statement effective for the applicable period; and cause each
Prospectus to be supplemented by any required Prospectus supplement,
and as so supplemented to be filed pursuant to Rule 424 (or any similar
provision then in force) under the 1933 Act and comply with the
provisions of the 1933 Act, the 1934 Act and the rules and regulations
thereunder applicable to them with respect to the disposition of all
securities covered by the Shelf Registration Statement during the
applicable period in accordance with the intended method or methods of
distribution by the selling Holders thereof (including sales by any
Participating Broker-Dealer);
(c) (i) notify each Holder of Registrable Securities, at least
five business days prior to filing, that a Shelf Registration Statement
with respect to the Registrable Securities is being filed and advising
such Holders that the distribution of Registrable Securities will be
made in accordance with the method selected by the Majority Holders
participating in the Shelf Registration; (ii) furnish to each Holder of
Registrable Securities and to each underwriter of an underwritten
offering of Registrable Securities, if any, without charge, as many
copies of each Prospectus, including each preliminary Prospectus, and
any amendment or supplement thereto and such other documents as such
Holder or underwriter may reasonably request, including financial
statements and schedules and, if the Holder so requests, all exhibits
in order to facilitate the public sale or other disposition of the
Registrable Securities; and (iii) hereby consent to the use of the
Prospectus or any amendment or supplement thereto by each of the
selling Holders of Registrable Securities in connection with the
offering and sale of the Registrable Securities covered by the
Prospectus or any amendment or supplement thereto;
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(d) use its best efforts to register or qualify the
Registrable Securities under all applicable state securities or "blue
sky" laws of such jurisdictions as any Holder of Registrable Securities
covered by a Shelf Registration Statement, and do any and all other
acts and things which may be reasonably necessary or advisable to
enable each such Holder and underwriter to consummate the disposition
in each such jurisdiction of such Registrable Securities owned by such
Holder; provided, however, that the Company shall be required to (i)
qualify as a foreign corporation or as a dealer in securities in any
jurisdiction where it would not otherwise be required to qualify but
for this Section 3(d), or (ii) take any action which would subject it
to general service of process or taxation in any such jurisdiction
where it is not then so subject;
(e) notify promptly each Holder of Registrable Securities
under a Shelf Registration and, if requested by such Holder or
Participating Broker-Dealer, confirm such advice in writing promptly
(i) when a Shelf Registration Statement has become effective and when
any post-effective amendments and supplements thereto become effective,
(ii) of any request by the SEC or any state securities authority for
post-effective amendments and supplements to a Registration Statement
and Prospectus or for additional information after the Shelf
Registration Statement has become effective, (iii) of the issuance by
the SEC or any state securities authority of any stop order suspending
the effectiveness of a Shelf Registration Statement or the initiation
of any proceedings for that purpose, (iv) in the case of a Shelf
Registration, if, between the effective date of a Shelf Registration
Statement and the closing of any sale of Registrable Securities covered
thereby, the representations and warranties of the Company contained in
any underwriting agreement, securities sales agreement or other similar
agreement, if any, relating to the offering cease to be true and
correct in all material respects, (v) of the happening of any event or
the discovery of any facts during the period a Shelf Registration
Statement is effective which makes any statement made in such Shelf
Registration Statement or the related Prospectus untrue in any material
respect or which requires the making of any changes in such Shelf
Registration Statement or Prospectus in order to make the statements
therein not misleading, (vi) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose and (vii) of any
determination by the Company that a post-effective amendment to such
Shelf Registration Statement would be appropriate;
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(f) furnish counsel for the Holders of Registrable Securities
copies of any comment letters received from the SEC or any other
request by the SEC or any state securities authority for amendments or
supplements to a Shelf Registration Statement and Prospectus or for
additional information;
(g) make every reasonable effort to obtain the withdrawal of
any order suspending the effectiveness of a Shelf Registration
Statement at the earliest possible moment;
(h) furnish to each Holder of Registrable Securities, and each
underwriter, if any, without charge, at least one conformed copy of
each Shelf Registration Statement and any post-effective amendment
thereto, including financial statements and schedules (without
documents incorporated therein by reference and all exhibits thereto,
unless requested);
(i) cooperate with the selling Holders of Registrable
Securities to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold and not
bearing any restrictive legends; and enable such Registrable Securities
to be in such denominations (consistent with the provisions of the
Certificate of Designations) and registered in such names as the
selling Holders or the underwriters, if any, may reasonably request at
least three business days prior to the closing of any sale of
Registrable Securities;
(j) upon the occurrence of any event or the discovery of any
facts, each as contemplated by Sections 3(e)(v) and 3(e)(vi) hereof, as
promptly as practicable after the occurrence of such an event, use
their best efforts to prepare a supplement or post-effective amendment
to the Shelf Registration Statement or the related Prospectus or any
document incorporated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of the
Registrable Securities or Participating Broker-Dealers, such Prospectus
will not contain at the time of such delivery any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading or will remain so qualified. At such time as such
public disclosure is otherwise made or the Company determines that such
disclosure is not necessary, in each case to correct any misstatement
of a material fact or to include any omitted material fact, the Company
agrees promptly to notify each Holder of such determination and to
furnish each Holder such number of copies of the Prospectus as amended
or supplemented, as such Holder may reasonably request;
(k) a reasonable time prior to the filing of any Shelf
Registration Statement, any Prospectus, any amendment to a Shelf
Registration Statement or amendment or supplement to a Prospectus or
any document which is to be incorporated by reference into a
Registration Statement or a Prospectus after initial filing of a Shelf
Registration Statement, provide copies of such document to the Initial
Purchasers on behalf of such Holders; and make representatives of the
Company as shall be reasonably requested by the Holders of Registrable
Securities, or the Initial Purchasers on behalf of such Holders,
available for discussion of such document;
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(l) obtain a CUSIP number for all Registrable Securities not
later than the effective date of a Shelf Registration Statement, and
provide the Transfer Agent with printed certificates for the
Registrable Securities in a form eligible for deposit with the
Depositary;
(m) enter into agreements (including underwriting agreements)
and take all other customary and appropriate actions in order to
expedite or facilitate the disposition of such Registrable Securities
and in such connection whether or not an underwriting agreement is
entered into and whether or not the registration is an underwritten
registration:
(i) make such representations and warranties to the
Holders of such Registrable Securities and the underwriters,
if any, in form, substance and scope as are customarily made
by issuers to underwriters in similar underwritten offerings
as may be reasonably requested by them;
(ii) obtain opinions of counsel to the Company and updates
thereof (which counsel and opinions (in form of Exhibit A
hereto) shall be reasonably satisfactory to the managing
underwriters, if any, and the holders of a majority of the
shares of Registrable Securities being sold) addressed to each
selling Holder and the underwriters, if any, covering the
matters customarily covered in opinions requested in sales of
securities or underwritten offerings and such other matters as
may be reasonably requested by such Holders and underwriters;
(iii) obtain "cold comfort" letters and updates thereof
from the Company's independent certified public accountants
(and, if necessary, any other independent certified public
accountants of any subsidiary of the Company or of any
business acquired by the Company for which financial
statements are, or are required to be, included in the Shelf
Registration Statement) addressed to the underwriters, if any,
and use reasonable efforts to have such letter addressed to
the selling Holders of Registrable Securities (to the extent
consistent with Statement on Auditing Standards No. 100 of the
American Institute of Certified Public Accounts), such letters
to be in customary form and covering matters of the type
customarily covered in "cold comfort" letters to underwriters
in connection with similar underwritten offerings;
(iv) enter into a securities sales agreement with the
Holders and an agent of the Holders providing for, among other
things, the appointment of such agent for the selling Holders
for the purpose of soliciting purchases of Registrable
Securities, which agreement shall be in form, substance and
scope customary for similar offerings;
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(v) if an underwriting agreement is entered into, cause
the same to set forth indemnification provisions and
procedures substantially equivalent to the indemnification
provisions and procedures set forth in Section 4 hereof with
respect to the underwriters and all other parties to be
indemnified pursuant to said Section or, at the request of any
underwriters, in the form customarily provided to such
underwriters in similar types of transactions; and
(vi) deliver such documents and certificates as may be
reasonably requested and as are customarily delivered in
similar offerings to the Holders of a majority of the shares
of Registrable Securities being sold and the managing
underwriters, if any.
The above shall be done at (i) the effectiveness of such Shelf
Registration Statement (and each post-effective amendment thereto) and
(ii) each closing under any underwriting or similar agreement as and to
the extent required thereunder;
(n) make available for inspection by representatives of the
Holders of the Registrable Securities, any underwriters participating
in any disposition pursuant to a Shelf Registration Statement, any
Participating Broker-Dealer and any counsel or accountant retained by
any of the foregoing, all financial and other records, pertinent
corporate documents and properties of the Company reasonably requested
by any such persons, and cause the respective officers, directors,
employees, and any other agents of the Company to supply all
information reasonably requested by any such representative,
underwriter, special counsel or accountant in connection with a Shelf
Registration Statement, and make such representatives of the Company
available for discussion of such documents as shall be reasonably
requested by the Initial Purchasers;
(o) a reasonable time prior to filing any Shelf Registration
Statement, any Prospectus forming a part thereof, any amendment to such
Shelf Registration Statement or amendment or supplement to such
Prospectus, provide copies of such document to the Holders of
Registrable Securities, to the Initial Purchasers, to counsel for the
Holders and to the underwriter or underwriters of an underwritten
offering of Registrable Securities, if any, make such changes in any
such document prior to the filing thereof as the Initial Purchasers,
the counsel to the Holders or the underwriter or underwriters
reasonably request and not file any such document in a form to which
the Majority Holders, the Initial Purchasers on behalf of the Holders
of Registrable Securities, counsel for the Holders of Registrable
Securities or any underwriter shall not have previously been advised
and furnished a copy of or to which the Majority Holders, the Initial
Purchasers of behalf of the Holders of Registrable Securities, counsel
to the Holders of Registrable Securities or any underwriter shall
reasonably object, and make the representatives of the Company
available for discussion of such document as shall be reasonably
requested by the Holders of Registrable Securities, the Initial
Purchasers on behalf of such Holders, counsel for the Holders of
Registrable Securities or any underwriter;
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(p) use its best efforts to cause all Registrable Securities
to be listed on any securities exchange on which similar securities
issued by the Company are then listed if requested by the Majority
Holders, or if requested by the underwriter or underwriters of an
underwritten offering of Registrable Securities, if any;
(q) use its best efforts to cause the Registrable Securities
to be rated by the appropriate rating agencies, if so requested by the
Majority Holders, or if requested by the underwriter or underwriters of
an underwritten offering of Registrable Securities, if any;
(r) otherwise comply with all applicable rules and regulations
of the SEC and make available to its security holders, as soon as
reasonably practicable, an earnings statement covering at least 12
months which shall satisfy the provisions of Section 11(a) of the 1933
Act and Rule 158 thereunder; and
(s) cooperate and assist in any filings required to be made
with the NASD and in the performance of any due diligence investigation
by any underwriter and its counsel (including any "qualified
independent underwriter" that is required to be retained in accordance
with the rules and regulations of the NASD).
The Company may (as a condition to such Holder's participation
in the Shelf Registration) require each Holder of Registrable Securities to
furnish to the Company such information regarding the Holder and the proposed
distribution by such Holder of such Registrable Securities as the Company may
from time to time reasonably request in writing. Notwithstanding anything herein
to the contrary, no Holder of Registrable Securities may include any of its
Registrable Securities in any Shelf Registration Statement pursuant to this
Agreement unless and until such holder (i) furnishes to the Company the
information required by the Questionnaire included as Annex A in the Offering
Memorandum, (ii) agrees to promptly furnish additional information required to
be disclosed in order to make the information previously furnished to the
Company by such Holder not materially misleading and (iii) at the Company's
request, acknowledges in writing its agreement to be bound by the provisions of
this Agreement in accordance with Section 3 hereof. No holder shall be entitled
to Additional Dividends during any period in which the exclusion of any
Registrable Securities of such Holder from any Shelf Registration results from
the operation of this paragraph.
Each Holder agrees that, upon receipt of any notice from the
Company of the happening of any event or the discovery of any facts, each of the
kind described in Section 3(e)(v) or (vi) hereof, such Holder will forthwith
discontinue disposition of Registrable Securities pursuant to a Shelf
Registration Statement until such Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 3(k) hereof, and, if
so directed by the Company, such Holder will deliver to the Company (at its
expense) all copies in such Holder's possession, other than permanent file
copies then in such Holder's possession, of the Prospectus covering such
Registrable Securities current at the time of receipt of such notice. If the
Company shall give any such notice to suspend the disposition of Registrable
Securities pursuant to the Shelf Registration Statement, the Company shall
extend the period during which the Shelf Registration Statement shall be
maintained effective pursuant to this Agreement by the number of days during the
period from and including the date of giving such notice to and including the
date when the Holders shall have received copies of the supplemented or amended
Prospectus necessary to resume such dispositions. Such suspensions may not
exceed 90 days in the aggregate in any consecutive 365-day period.
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In the event that the Company fails to file any Shelf
Registration Statement and maintain the effectiveness of any Shelf Registration
Statement as provided herein, the Company shall not file any Registration
Statement with respect to any securities (within the meaning of Section 2(1) of
the 0000 Xxx) of the Company other than Registrable Securities.
If any of the Registrable Securities covered by any Shelf
Registration Statement are to be sold in an underwritten offering, the
underwriter or underwriters and manager or managers that will manage such
offering will be selected by the Majority Holders of such Registrable Securities
included in such offering and shall be acceptable to the Company. No Holder of
Registrable Securities may participate in any underwritten registration
hereunder unless such Holder (a) agrees to sell such Holder's Registrable
Securities on the basis provided in any underwriting arrangements approved by
the persons entitled hereunder to approve such arrangements and (b) completes
and executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents required under the terms of such underwriting
arrangements.
4. Indemnification; Contribution. (a) The Company shall
indemnify and hold harmless the Initial Purchasers, each Holder, each
Participating Broker-Dealer, each Person who participates as an underwriter (any
such Person being an "Underwriter") and each Person, if any, who controls any
Holder or Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in any
Registration Statement (or any amendment or supplement thereto)
pursuant to which Registrable Securities were registered under the 1933
Act, including all documents incorporated therein by reference, or the
omission or alleged omission therefrom of a material fact required to
be stated therein or necessary to make the statements therein not
misleading, or arising out of any untrue statement or alleged untrue
statement of a material fact contained in any Prospectus (or any
amendment or supplement thereto) or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided
that (subject to Section 4(d) below) any such settlement is effected
with the written consent of the Company; and
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(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by any
indemnified party), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under subparagraph (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense (i) to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by or
on behalf of the Holder or Underwriter expressly for use in a Registration
Statement (or any amendment thereto) or any Prospectus (or any amendment or
supplement thereto), (ii) resulting from the use of the Prospectus during a
period when the use of such Prospectus has been suspended; provided that the
Holder received prior notice of such suspension in accordance with Section 3
hereof or (iii) resulting from the fact that the Holder sold Registrable
Securities to a person as to whom there was not sent or given prior to the
written confirmation of such sale, a copy of the Prospectus, in any case where
such delivery is required by the 0000 Xxx.
(b) Each Holder severally, but not jointly, agrees to
indemnify and hold harmless the Company, the Initial Purchasers, each
Underwriter and the other selling Holders, and each of their respective
directors and officers, and each Person, if any, who controls the Company, the
Initial Purchasers, any Underwriter or any other selling Holder within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, against any
and all loss, liability, claim, damage and expense described in the indemnity
contained in Section 4(a) hereof, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Shelf Registration Statement (or any amendment thereto) or any Prospectus
included therein (or any amendment or supplement thereto) in reliance upon and
in conformity with written information with respect to such Holder furnished to
the Company by or on behalf of such Holder expressly for use in the Shelf
Registration Statement (or any amendment thereto) or such Prospectus (or any
amendment or supplement thereto); provided, however, that no such Holder shall
be liable for any claims hereunder in excess of the amount of net proceeds
received by such Holder from the sale of Registrable Securities pursuant to such
Shelf Registration Statement.
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action or proceeding
commenced against it in respect of which indemnity may be sought hereunder, but
failure so to notify an indemnifying party shall not relieve such indemnifying
party from any liability hereunder to the extent it is not materially prejudiced
as a result thereof and in any event shall not relieve it from any liability
which it may have otherwise than on account of this indemnity agreement. An
indemnifying party may participate at its own expense in the defense of such
action; provided, however, that counsel to the indemnifying party shall not
(except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying party or parties be liable
for the fees and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances.
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 4 (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim and (ii) does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
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(d) If at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 4(a)(ii) effected without its
written consent if (i) such settlement is entered into more than 60 business
days after receipt by such indemnifying party of the aforesaid request, (ii)
such indemnifying party shall have received notice of the terms of such
settlement at least 30 days prior to such settlement being entered into and
(iii) such indemnifying party shall not have reimbursed such indemnified party
for such fees and expenses of counsel in accordance with such request prior to
the date of such settlement.
(e) If the indemnification provided for in this Section 4 is
for any reason unavailable to or insufficient to hold harmless an indemnified
party in respect of any losses, liabilities, claims, damages or expenses
referred to therein, then each indemnifying party shall contribute to the
aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, in such proportion as is
appropriate to reflect the relative fault of the Company on the one hand and the
Holders and the Initial Purchasers on the other hand in connection with the
statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative fault of the Company on the one hand and the
Holders and the Initial Purchasers on the other hand shall be determined by
reference to, among other things, whether any such untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company, the Holders or the Initial
Purchasers and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company, the Holders and the Initial Purchasers agree that
it would not be just and equitable if contribution pursuant to this Section 4
were determined by pro rata allocation (even if the Initial Purchasers were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to above in
this Section 4. The aggregate amount of losses, liabilities, claims, damages and
expenses incurred by an indemnified party and referred to above in this Section
4 shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
-14-
Notwithstanding the provisions of this Section 4, no Initial
Purchaser shall be required to contribute any amount in excess of the amount by
which the total price at which the Securities sold by it were offered exceeds
the amount of any damages which such Initial Purchaser has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission.
No Person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 0000 Xxx) shall be entitled to contribution from
any Person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 4, each Person, if any, who
controls an Initial Purchaser or Holder within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as such Initial Purchaser or Holder, and each director of the
Company, and each Person, if any, who controls the Company within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same
rights to contribution as the Company. The Initial Purchasers' respective
obligations to contribute pursuant to this Section 7 are several in proportion
to the number of shares of Securities set forth opposite their respective names
in Schedule A to the Purchase Agreement and not joint.
5. Miscellaneous.
5.1 Rule 144 and Rule 144A. For so long as the Company is
subject to the reporting requirements of Section 13 or 15 of the 1934 Act, the
Company covenants that it will file the reports required to be filed by it under
the 1933 Act and Section 13(a) or 15(d) of the 1934 Act and the rules and
regulations adopted by the SEC thereunder. If the Company ceases to be so
required to file such reports, the Company covenants that it will upon the
request of any Holder of Registrable Securities (a) make publicly available such
information as is necessary to permit sales pursuant to Rule 144 under the 1933
Act, (b) deliver such information to a prospective purchaser as is necessary to
permit sales pursuant to Rule 144A under the 1933 Act and it will take such
further action as any Holder of Registrable Securities may reasonably request,
and (c) take such further action that is reasonable in the circumstances, in
each case, to the extent required from time to time to enable such Holder to
sell its Registrable Securities without registration under the 1933 Act within
the limitation of the exemptions provided by (i) Rule 144 under the 1933 Act, as
such Rule may be amended from time to time, (ii) Rule 144A under the 1933 Act,
as such Rule may be amended from time to time, or (iii) any similar rules or
regulations hereafter adopted by the SEC. Upon the request of any Holder of
Registrable Securities, the Company will deliver to such Holder a written
statement as to whether it has complied with such requirements.
5.2 No Inconsistent Agreements. The Company has not entered
into and the Company will not after the date of this Agreement enter into any
agreement which is inconsistent with the rights granted to the Holders of
Registrable Securities in this Agreement or otherwise conflicts with the
provisions hereof. The rights granted to the Holders hereunder do not and will
not for the term of this Agreement in any way conflict with the rights granted
to the holders of the Company's other issued and outstanding securities under
any such agreements.
-15-
5.3 Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Company has obtained the written consent of Holders
of at least a majority of the shares of outstanding Registrable Securities
affected by such amendment, modification, supplement, waiver or departure.
5.4 Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (a) if to a Holder, at the most current address given by such Holder to
the Company by means of a notice given in accordance with the provisions of this
Section 5.4, which address initially is the address set forth in the Purchase
Agreement with respect to the Initial Purchasers; and (b) if to the Company,
initially at the Company's address set forth in the Purchase Agreement, and
thereafter at such other address of which notice is given in accordance with the
provisions of this Section 5.4.
All such notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally delivered; two
business days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt is acknowledged, if telecopied; and
on the next business day if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands, or other communications
shall be concurrently delivered by the person giving the same to the Transfer
Agent, at the address specified herein.
5.5 Successor and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of each
of the parties, including, without limitation and without the need for an
express assignment, subsequent Holders; provided that nothing herein shall be
deemed to permit any assignment, transfer or other disposition of Registrable
Securities in violation of the terms of the Purchase Agreement or the
Certificate of Designations. If any transferee of any Holder shall acquire
Registrable Securities, in any manner, whether by operation of law or otherwise,
such Registrable Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Registrable Securities such person
shall be conclusively deemed to have agreed to be bound by and to perform all of
the terms and provisions of this Agreement, including the restrictions on resale
set forth in this Agreement and, if applicable, the Purchase Agreement, and such
person shall be entitled to receive the benefits hereof.
-16-
5.6 Third Party Beneficiaries. The Initial Purchasers (even if
the Initial Purchasers are not Holders of Registrable Securities) shall be third
party beneficiaries to the agreements made hereunder between the Company, on the
one hand, and the Holders, on the other hand, and shall have the right to
enforce such agreements directly to the extent they deem such enforcement
necessary or advisable to protect their rights or the rights of Holders
hereunder. Each Holder of Registrable Securities shall be a third party
beneficiary to the agreements made hereunder between the Company, on the one
hand, and the Initial Purchasers, on the other hand, and shall have the right to
enforce such agreements directly to the extent it deems such enforcement
necessary or advisable to protect its rights hereunder.
5.7 Specific Enforcement. Without limiting the remedies
available to the Initial Purchasers and the Holders, the Company acknowledges
that any failure by it to comply with its obligations under Sections 2.1 through
2.4 hereof may result in material irreparable injury to the Initial Purchasers
or the Holders for which there is no adequate remedy at law, that it would not
be possible to measure damages for such injuries precisely and that, in the
event of any such failure, the Initial Purchasers or any Holder may obtain such
relief as may be required to specifically enforce the Company's obligations
under Sections 2.1 through 2.4 hereof; provided, however, that without limiting
the ability of the Initial Purchasers or any Holder to specifically enforce such
obligations, in the case of any terms of this Agreement for which Additional
Dividends pursuant to Section 2.4 are expressly provided as a remedy for a
violation of such terms, such Additional Dividends shall be the sole monetary
damages for such violation.
5.8 Restriction on Resales. Until the expiration of two years
after the original issuance of the Securities, the Company will not, and will
cause its "affiliates" (as such term is defined in Rule 144(a)(1) under the 0000
Xxx) not to, resell any Securities which are "restricted securities" (as such
term is defined under Rule 144(a)(3) under the 0000 Xxx) that have been
reacquired by any of them and no such Securities shall be counted in determining
whether such consent or approval was given by the Holders of any required
percentage under this Agreement..
5.9 Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
5.10 Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
5.11 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO
THE PRINCIPLES OF CONFLICT OF LAWS THEREOF.
5.12 Submission to Jurisdiction; Waiver of Jury Trial. No
proceeding related to this Agreement or the transactions contemplated hereby may
be commenced, prosecuted or continued in any court other than the courts of the
State of New York located in the City and County of New York or in the United
States District Court for the Southern District of New York, which courts shall
have jurisdiction over the adjudication of such matters, and the Company hereby
consent to the jurisdiction of such courts and personal service with respect
thereto. The Company hereby waive all right to trial by jury in any proceeding
(whether based upon contract, tort or otherwise) in any way arising out of or
relating to this Agreement. The Company agrees that a final judgment in any such
proceeding brought in any such court shall be conclusive and binding upon the
Company and may be enforced in any other courts in the jurisdiction of which the
Company are or may be subject, by suit upon such judgment.
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5.13 Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
GENERAL CABLE CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Xxxxxx X. Xxxxxx
Executive Vice President
Confirmed and accepted as of
the date first above written:
UBS SECURITIES LLC
By: /s/ Xxxxxxx Xxxxxxxx
---------------------------------
Xxxxxxx Xxxxxxxx
Executive Director
By: /s/ Xxxxxxx Xxxxxx
---------------------------------
Xxxxxxx Xxxxxx
Associate Director
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: /s/ X.X.Xxxxx
---------------------------------
X.X.Xxxxx
Managing Director
SCHEDULE A
Initial Purchasers
UBS Securities LLC
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Exhibit A
Form of Opinion of Counsel
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxxx Xxxxx World Headquarters
World Financial Center - North Tower
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
We have acted as counsel for General Cable Corporation, a
Delaware corporation (the "Company"), in connection with the sale by the Company
to the Initial Purchasers (as defined below) of 2,070,000 shares of 5.75% Series
A Redeemable Convertible Preferred Stock (the "Securities") of the Company
pursuant to the Purchase Agreement dated November 18, 2003 (the "Purchase
Agreement") among the Company and UBS Securities LLC and Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated (collectively, the "Initial Purchasers") and the
filing by the Company of an Shelf Registration Statement (the "Registration
Statement") in connection with a Shelf Registration to be effected pursuant to
the Registration Rights Agreement (the "Registration Rights Agreement"), dated
November 24, 2003 between the Company and the Initial Purchasers. This opinion
is furnished to you pursuant to Section 3(m)(ii) of the Registration Rights
Agreement. Unless otherwise defined herein, capitalized terms used in this
opinion that are defined in the Registration Rights Agreement are used herein as
so defined.
We have examined such documents, records and matters of law as
we have deemed necessary for purposes of this opinion. In rendering this
opinion, as to all matters of fact relevant to this opinion, we have assumed the
completeness and accuracy of, and are relying solely upon, the representations
and warranties of the Company set forth in the Purchase Agreement and the
statements set forth in certificates of public officials and officers of the
Company, without making any independent investigation or inquiry with respect to
the completeness or accuracy of such representations, warranties or statements,
other than a review of the certificate of incorporation, by-laws and relevant
minute books of the Company.
Based on and subject to the foregoing, we are of the opinion
as follows:
1. The Shelf Registration Statement and the Prospectus (other
than the financial statements, notes or schedules thereto and other financial
data and supplemental schedules included or incorporated by reference therein or
omitted therefrom, as to which such counsel need express no opinion), comply as
to form in all material respects with the requirements of the 1933 Act and the
applicable rules and regulations promulgated under the 1933 Act.
A-1
We have participated in the preparation of the Registration
Statement and the Prospectus and in the course thereof have had discussions with
representatives of the underwriters, officers and other representatives of the
Company and Deloitte & Touche LLP the Company's independent public accountants,
during which the contents of the Registration Statement and the Prospectus were
discussed. We have not, however, independently verified and are not passing
upon, and do not assume any responsibility for, the adequacy, accuracy,
completeness or fairness of the statements contained in the Registration
Statement and the Prospectus. Based on our participation as described above,
nothing has come to our attention that would lead us to believe that the
Registration Statement (it being understood that we express no comment with
respect to the financial statements, including the notes thereto, or any other
financial or statistical data that is found in or derived from the internal
accounting or financial records of the Company and its subsidiaries set forth or
referred to in the Registration Statement) contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or that the
Prospectus or any amendment or supplement thereto (it being understood that we
express no comment with respect to the financial statements, including the notes
thereto, or any other financial or statistical data that is found in or derived
from the internal accounting or financial records of the Company and its
subsidiaries set forth or referred to in the Prospectus), at the time the
Prospectus was issued, at the time any such amended or supplemented Prospectus
was issued or at the Closing Time, included or includes an untrue statement of a
material fact or omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
This opinion is being furnished to you solely for your benefit
in connection with the transactions contemplated by the Registration Rights
Agreement, and may not be used for any other purpose or relied upon by any
person other than you. Except with our prior written consent, the opinions
herein expressed are not to be used, circulated, quoted or otherwise referred to
in connection with any transactions other than those contemplated by the
Registration Rights Agreement by or to any other person.
Very truly yours,
A-2
