EXHIBIT 4.6
COMMSCOPE, INC.
$150,000,000
4% CONVERTIBLE SUBORDINATED NOTES DUE 2006
REGISTRATION RIGHTS AGREEMENT
-----------------------------
December 15, 1999
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
CIBC WORLD MARKETS CORP.
x/x XXXXXXX XXXXX & XX.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
This Registration Rights Agreement (the "Agreement") is made and
entered into this fifteenth day of December, 1999, among CommScope, Inc., a
Delaware corporation (the "Company"), and Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated and CIBC World Markets Corp. (collectively, the "Initial
Purchasers").
This Agreement is made pursuant to the Purchase Agreement, dated
December 9, 1999, among the Company and the Initial Purchasers (the
"Purchase Agreement"), which provides for the sale by the Company to the
Initial Purchasers of an aggregate of $150,000,000 million principal amount
of the Company's 4% Convertible Subordinated Notes due 2006 (the "Firm
Notes"), and, at the election of the Initial Purchasers, solely to cover
overallotments, if any, in connection with the offering of the Firm Notes,
up to $22,500,000 aggregate principal amount of additional 4% Convert-
ible Subordinated Notes due 2006 (the "Additional Notes," and, together
with the Firm Notes, the "Notes").
As an inducement to the Initial Purchasers to enter into the Purchase
Agreement and in satisfaction of a condition to the obligations of the
Initial Purchasers thereunder, the Company agrees with you, (i) for the
benefit of the Initial Purchasers and (ii) for the benefit of the holders
from time to time of the Notes and the holders from time to time of the
Common Stock, par value $0.01 per share (the "Common Stock"), of the
Company initially issuable upon conversion of the Notes (each of the
foregoing, a "Holder" and, together, the "Holders"), as follows:
Section 1. Definitions. Capitalized terms used in this Agreement
without definition shall have their respective meanings set forth in the
Purchase Agreement. All references to Sections herein are to Sections of
this Agreement unless otherwise indicated. As used in this Agreement, the
following capitalized defined terms shall have the following meanings:
"1933 Act" means the Securities Act of 1933, as amended from time
to time.
"1934 Act" means the Securities Exchange Act of l934, as amended
from time to time.
"Affiliate" of any specified person means any other person which,
directly or indirectly, is in control of, is controlled by, or is
under common control with such specified person. For purposes of this
definition, control of a person means the power, direct or indirect,
to direct or cause the direction of the management and policies of
such person whether by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the
foregoing.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday that is not a day on which banking institutions in The City
of New York are authorized or obligated by law or executive order to
close.
"Commission" means the Securities and Exchange Commission.
"Conversion Rate" means the term "Conversion Rate" as defined in
the Indenture.
2
"Damages Payment Date" means each June 15 and December 15 in the
case of Notes and the Common Stock.
"DTC" means The Depository Trust Company.
"Effectiveness Period" has the meaning set forth in Section 2(b).
"Indenture" means the Indenture dated as of the date hereof among
the Company and First Union National Bank, as trustee, pursuant to
which the Notes are being issued.
"Managing Underwriters" means the investment banker or investment
bankers and manager or managers that shall administer an underwritten
offering, if any, as set forth in Section 6.
"Notice and Questionnaire" means a written notice delivered to
the Company containing substantially the information called for by the
Form of Selling Securityholder Notice and Questionnaire attached as
Annex A to the Offering Memorandum of the Company dated December 9,
1999 relating to the Notes.
"Notice Holder" means, on any date, any Holder that has delivered
a Notice and Questionnaire to the Company on or prior to such date.
"Person" shall mean an individual, partnership, corporation,
trust or unincorporated organization, or a government or agency or
political subdivision thereof.
"Prospectus" means the prospectus included in any Shelf
Registration Statement (including, without limitation, a prospectus
that discloses information previously omitted from a prospectus filed
as part of an effective registration statement in reliance upon Rule
430A under the 1933 Act), as amended or supplemented by any prospectus
supplement, with respect to the terms of the offering of any portion
of the Registrable Securities.
"Record Holder" means, with respect to any Damages Payment Date
relating to any Note or Common Stock as to which any Liquidated
Damages Amount has accrued, the registered holder of such Note or
Common Stock, as
3
the case may be, 15 days prior to the next succeeding Damages
Payment Date.
"Registrable Securities" means the Notes and the shares of Common
Stock issuable upon conversion of the Notes, and any security issued
with respect thereto upon any stock dividend, split or similar event
until, in the case of any such security, the earliest of (i) its
effective registration under the 1933 Act and resale in accordance
with the Registration Statement covering it, (ii) expiration of the
holding period that would be applicable thereto under Rule 144(k) were
it not held by an Affiliate of the Company or (iii) its sale to the
public pursuant to Rule 144.
"Shelf Registration" means a registration effected pursuant to
Section 2.
"Shelf Registration Statement" means a "shelf" registration
statement of the Company pursuant to the provisions of Section 2 filed
with the Commission which covers some or all of the Registrable
Securities, as applicable, on an appropriate form under Rule 415 under
the 1933 Act, or any similar rule that may be adopted by the
Commission, 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.
"Trustee" means First Union National Bank (or any successor
entity), the trustee under the Indenture.
"underwriter" means any underwriter of Registrable Securities in
connection with an offering thereof under a Shelf Registration
Statement.
Section 2. Shelf Registration. (a) The Company shall prepare and file
or cause to be prepared and filed with the Commission, as soon as
practicable, but in any event, no later than the date (the "Filing Deadline
Date") that is 90 days after the date of original issuance (the "Issue
Date") of the Notes, 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 such Holders and set
forth in such Shelf Registration Statement and, thereafter, shall use all
reasonable efforts to cause such Shelf Registration Statement to be
declared effective under the 1933 Act as soon as practicable, but in any
event no later than the
4
date (the "Effectiveness Deadline Date") that is 180 days following the
Issue Date; provided, however, that no Holder shall be entitled to have the
Registrable Securities held by it covered by such Shelf Registration unless
such Holder shall have provided a Notice and Questionnaire in accordance
with Section 2(c) and is in compliance with Section 3(m). None of the
Company's securityholders (other than the Holders of Registrable
Securities) shall have the right to include any of the Company's securities
in the Shelf Registration Statement.
(b) The Company shall use all reasonable efforts to keep the
Shelf Registration Statement continuously effective 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
or such shorter period that will terminate upon the earliest of the
following: (A) when all the Notes covered by the Shelf Registration
Statement have been sold pursuant to the Shelf Registration Statement, (B)
when all shares of Common Stock issued upon conversion of any such Notes
that had not been sold pursuant to the Shelf Registration Statement have
been sold pursuant to the Shelf Registration Statement and (C) when, in the
written opinion of counsel to the Company, all outstanding Registrable
Securities held by persons which are not affiliates of the Company may be
resold without registration under the 1933 Act pursuant to Rule 144(k)
under the 1933 Act or any successor provision thereto (in any such case,
such period being called the "Effectiveness Period").
(c) Each Holder of Registrable Securities wishing to sell
Registrable Securities pursuant to a Shelf Registration Statement and
related Prospectus agrees to deliver a Notice and Questionnaire to the
Company at least five (5) Business Days prior to any intended distribution
of Registrable Securities under the Shelf Registration Statement. From and
after the date the Shelf Registration Statement is declared effective, the
Company shall, as promptly as is practicable after the date a Notice and
Questionnaire and such other information as the Company may reasonably
require pursuant to Section 3(m) is delivered, and in any event within five
(5) Business Days after such date, (i) if required by applicable law, file
with the Commission a post-effective amendment to the Shelf Registration
Statement or prepare and, if required by applicable law, file a supplement
to the related Prospectus or a supplement or amendment to any document
incorporated therein by reference or file any other required document so
that the Holder delivering such Notice and Questionnaire is named as a
selling securityholder in the Shelf Registration Statement and the related
Prospectus in such a manner as to permit such Holder to deliver such
Prospectus to purchasers of the Registrable Securities in accordance with
5
applicable law and, if the Company shall file a post-effective amendment to
the Shelf Registration Statement, use all reasonable efforts to cause such
post-effective amendment to be declared effective under the 1933 Act as
promptly as is practicable, but in any event by the date (the "Amendment
Effectiveness Deadline Date") that is 45 days after the date such
post-effective amendment is required by this clause to be filed; (ii)
provide such Holder copies of any documents filed pursuant to Section
2(c)(i); and (iii) notify such Holder as promptly as practicable after the
effectiveness under the 1933 Act of any post-effective amendment filed
pursuant to Section 2(c)(i); provided, that if such Notice and
Questionnaire is delivered during a Deferral Period, the Company shall so
inform the Holder delivering such Notice and Questionnaire and shall take
the actions set forth in clauses (i), (ii) and (iii) above upon expiration
of the Deferral Period in accordance with Section 2(d), provided, further ,
that if under applicable law the Company has more than one option as to the
type or manner of making any such filing, it will make the required filing
or filings in the manner or of a type that is reasonably expected to result
in the earliest availability of the Prospectus for effecting resales of
Registrable Securities. Notwithstanding anything contained herein to the
contrary, the Company shall not be under any obligation to name any Holder
that is not a Notice Holder as a selling securityholder in the Shelf
Registration Statement or related Prospectus; provided, however, that any
Holder that becomes a Notice Holder pursuant to the provisions of Section
2(c) of this Agreement (whether or not such Holder was a Notice Holder at
the time the Shelf Registration Statement was declared effective) shall be
named as a selling securityholder in the Shelf Registration Statement or
related Prospectus in accordance with the requirements of this Section
2(c).
(d) The Company shall be deemed not to have used all reasonable
efforts to keep the Shelf Registration Statement effective during the
requisite period if either the Company voluntarily takes any action that
would result in Holders of Registrable Securities covered thereby not being
able to offer and sell any such Registrable Securities during that period,
unless (i) such action is required by applicable law, (ii) upon the
occurrence of any event contemplated by paragraph 3(c)(2)(iii) below, and
such action is taken by the Company in good faith and for valid business
reasons or (iii) the continued effectiveness of the Shelf Registration
6
Statement would require the Company to disclose a material financing,
acquisition or other corporate development, and the proper officers of the
Company shall have determined in good faith that such disclosure is not in
the best interests of the Company and its stockholders, and, in the case of
clause (ii) above, the Company thereafter promptly comply with the
requirements of Section 3(i) below. The duration of all periods during
which the availability of the Shelf Registration Statement and the
Prospectus is suspended in accordance with clauses (i) through (iii) of the
preceding sentence (each such period of suspension being referred to herein
as a "Deferral Period") shall, without the Company incurring any obligation
to pay liquidated damages pursuant to Section 2(e), not to exceed, in the
aggregate, 90 days in any 12-month period.
(e) The parties hereto agree that the Holders of Registrable
Securities will suffer damages, and that it would not be feasible to
ascertain the extent of such damages with precision, if (i) the Shelf
Registration Statement has not been filed on or prior to the Filing
Deadline Date, (ii) the Shelf Registration Statement has not been declared
effective under the 1933 Act on or prior to the Effectiveness Deadline
Date, (iii) either the Company has failed to perform its obligations set
forth in Section 2(c) within the time period require therein or (iv) the
aggregate duration of Deferral Periods in any period exceeds the number of
days permitted in respect of such period pursuant to Section 2(d) hereof
(each of the events of a type described in any of the foregoing clauses (i)
through (iv) are individually referred to herein as an "Event," and the
Filing Deadline Date in the case of clause (i), the Effectiveness Deadline
Date in the case of clause (ii), the date by which the Company is required
to perform its obligations set forth in Section 2(c) in the case of clause
(iii) (including the filing of any post-effective amendment prior to the
Amendment Effectiveness Deadline Date) and the date on which the aggregate
duration of Deferral Periods in any period exceeds the number of days
permitted by Section 2(d) hereof in the case of clause (iv), being referred
to herein as an "Event Date"). Events shall be deemed to continue until the
"Event Termination Date," which shall be the following dates with respect
to the respective types of Events: the date the Shelf Registration
Statement is filed in the case of an Event of the type described in clause
(i), the date the Shelf Registration Statement is declared effective under
the Securities Act in the case of an Event of the type described in clause
(ii), the latest date on which the Company perform its obligations set
forth in Section 2(c) in the case of an Event of the type described in
clause (iii) (including, without limitation, the date the relevant
post-effective amendment to the Shelf Registration Statement is declared
effective under the 1933 Act), and termination of the Deferral Period that
caused the limit on the aggregate duration of Deferral Periods in a period
set forth in Section 2(d) to be exceeded in the case of the commencement of
an Event of the type described in clause (iv).
Accordingly, commencing on (and including) any Event Date and
ending on (but excluding) the next date on which there are no Events that
have occurred and are continuing (a "Damages Accrual Period"), the Company
agrees to
7
pay, as liquidated damages and not as a penalty, an amount (the "Liquidated
Damages Amount"), payable on the Damages Payment Dates to Record Holders of
then outstanding Notes that are Registrable Securities and of then
outstanding shares of Common Stock issued upon conversion of Notes that are
Registrable Securities, as the case may be, accruing, for each portion of
such Damages Accrual Period beginning on and including a Damages Payment
Date (or, in respect of the first time that the Liquidation Damages Amount
is to be paid to Holders on a Damages Payment Date as a result of the
occurrence of any particular Event, from the Event Date) and ending on but
excluding the first to occur of (A) the date of the end of the Damages
Accrual Period or (B) the next Damages Payment Date, at a rate per annum
equal to 0.25% of the principal amount of the Notes for the first 90 day
period after the occurrence of such event and 0.25% for each 90 day period
thereafter, provided that the maximum amount of Liquidated Damages will in
no event exceed 1.0% per annum of the principal amount of the Notes or, in
respect of any shares of Common Stock into which the Notes have been
converted, at a rate equal to $2.50 per annum per 20.7512 shares of Common
Stock (being equal to the number of shares of common stock issuable upon
conversion of $1,000 principal amount of Notes as of the date hereof, such
number being subject to adjustment as of any subsequent date according to
the Conversion Rate in effect as of such date of determination) for the
first 90 day period after the occurrence of such event and $2.50 per annum
per 20.7512 shares of Common Stock (subject to adjustment as stated above)
for each 90 day period thereafter, provided that the maximum amount of
Liquidated Damages will in no event exceed $10.00 per annum per 20.7512
shares of Common Stock (subject to adjustment as stated above); provided,
that in the case of a Damages Accrual Period that is in effect solely as a
result of an Event of the type described in clause (iii) of the immediately
preceding Paragraph, such Liquidated Damages Amount shall be paid only to
the Holders that have delivered Notice and Questionnaires that caused the
Company to incur the obligations set forth in Section 2(c) the
non-performance of which is the basis of such Event; provided further, that
any Liquidated Damages Amount accrued with respect to any Note or portion
thereof called for redemption on a redemption date or converted into Common
Stock on a conversion date prior to the Damages Payment Date, shall, in any
such event, be paid instead to the Holder who submitted such Note or
portion thereof for redemption or conversion on the applicable redemption
date or conversion date, as the case may be, on such date (or promptly
following the conversion date, in the case of conversion). Notwithstanding
the foregoing, no Liquidated Damages Amounts shall accrue as to any
Registrable Security from and after the earlier of (x) the date such
security is no longer a Registrable Security and (y) termination of the
Effectiveness Period pursuant to Section 2(b). The rate of accrual of the
Liquidated Damages Amount with
8
respect to any period shall not exceed the rate provided for in this
paragraph notwithstanding the occurrence of multiple concurrent Events.
Following the cure of all Events requiring the payment by the Company of
Liquidated Damages Amounts to the Holders of Registrable Securities
pursuant to this Section, the accrual of Liquidated Damages Amounts will
cease (without in any way limiting the effect of any subsequent Event
requiring the payment of Liquidated Damages Amount by the Company).
The Trustee shall be entitled, on behalf of Holders of Notes or
Common Stock issued upon conversion of Notes, to seek any available remedy
for the enforcement of this Agreement, including for the payment of any
Liquidated Damages Amount. Notwithstanding the foregoing, the parties agree
that the sole damages payable for a violation of the terms of this
Agreement with respect to which liquidated damages are expressly provided
shall be such liquidated damages. Nothing shall preclude a Notice Holder or
Holder of Registrable Securities from pursuing or obtaining specific
performance or other equitable relief with respect to this Agreement.
All of the Company's obligations set forth in this Section 2(e)
that are outstanding with respect to any Registrable Security at the time
such security ceases to be a Registrable Security shall survive until such
time as all such obligations with respect to such security have been
satisfied in full.
The parties hereto agree that the liquidated damages provided for
in this Section 2(e) constitute a reasonable estimate of the damages that
may be incurred by Holders of Registrable Securities by reason of the
failure of the Shelf Registration Statement to be filed or declared
effective or available for effecting resales of Registrable Securities in
accordance with the provisions hereof.
Section 3. Registration Procedures. In connection with any Shelf
Registration Statement, the following provisions shall apply:
(a) The Company shall furnish to the Initial Purchasers, prior to
the filing thereof with the Commission, a copy of any Shelf Registration
Statement, and each amendment thereof and each amendment or supplement, if
any, to the Prospectus included therein and shall use its reasonable best
efforts to reflect in each such document, when so filed with the
Commission, such comments as the Initial Purchasers reasonably may propose.
9
(b) The Company shall take such action as may be necessary so
that (i) any Shelf Registration Statement, and any amendment thereto, and
any Prospectus forming part thereof, and any amendment or supplement
thereto (and each report or other document incorporated therein by
reference in each case) complies in all material respects with the 1933 Act
and the 1934 Act and the respective 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 amendment or supplement
to such Prospectus, 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 the light of the circumstances under which they were made, not
misleading.
(c) (1) The Company shall advise the Initial Purchasers and, in
the case of clause (i), the Holders and, if requested by the Initial
Purchasers or any such Holder, confirm such advice in writing:
(i) when a Shelf Registration Statement, and any amendment
thereto, has been filed with the Commission and when the Shelf Registration
Statement or any post-effective amendment thereto has become effective; and
(ii) of any request by the Commission for amendments or
supplements to the Shelf Registration Statement or the Prospectus included
therein or for additional information.
(2) The Company shall advise the Initial Purchasers and the Holders
and, if requested by the Initial Purchasers or any such Holder, confirm
such advice in writing of:
(i) the issuance by the Commission of any stop order suspending
effectiveness of the Shelf Registration Statement or the initiation of any
proceedings for that purpose;
(ii) the receipt by the Company of any notification with respect
to the suspension of the qualification of the securities included therein
for sale in any jurisdiction or the initiation of any proceeding for such
purpose; and
10
(iii) the happening of any event that requires the making of any
changes in the Shelf Registration Statement or the Prospectus so that, as
of such date, the Shelf Registration Statement and the Prospectus do not
contain an untrue statement of a material fact and do not omit to state a
material fact required to be stated therein or necessary to make the
statements therein (in the case of the Prospectus, in light of the
circumstances under which they were made) not misleading (which advice
shall be accompanied by an instruction to suspend the use of the Prospectus
until the requisite changes have been made).
(d) The Company shall use its best efforts to prevent the
issuance, and, if issued, to obtain the withdrawal, of any order suspending
the effectiveness of any Shelf Registration Statement at the earliest
possible time.
(e) The Company shall furnish to each Holder of Registrable
Securities included within the coverage of any Shelf Registration
Statement, without charge, at least one copy of such Shelf Registration
Statement and any post-effective amendments thereto, including financial
statements and schedules, and, if the Holder so requests in writing, all
reports and other documents incorporated by reference in the Shelf
Registration Statement and exhibits (including those incorporated by
reference) except that the foregoing provision will not apply to regular
periodic reports filed with the Commission on Forms 10-Q or 10-K or Current
Reports on Form 8-K (or any similar successor forms), or exhibits to any
such documents unless requested.
(f) The Company shall, during the Effectiveness Period, deliver
to each Holder of Registrable Securities included within the coverage of
any Shelf Registration Statement, without charge, as many copies of the
Prospectus (including each preliminary prospectus) included in such Shelf
Registration Statement and any amendment or supplement thereto as such
Holder may reasonably request; and the Company consents (except upon and
during the continuance of any event described in paragraphs 2(d) or
3(c)(2)(iii) above or Section 6(c)) 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 during the Shelf Registration Period.
(g) Prior to any offering of Registrable Securities pursuant to
any Shelf Registration Statement, the Company shall register or qualify or
cooperate with the Holders of Registrable Securities included therein and
their respective counsel in
11
connection with the registration or qualification of such Registrable
Securities for offer and sale under the securities or blue sky laws of such
jurisdictions in the United States as any such Holders reasonably request
in writing and do any and all other acts or things necessary or advisable
to enable the offer and sale in such jurisdictions of the Registrable
Securities covered by such Shelf Registration Statement; provided, however,
that in no event shall the Company be obligated to (i) qualify generally to
do business or as a foreign corporation or as a dealer in securities in any
jurisdiction where it would not otherwise be required to so qualify but for
this Section 3(g), (ii) file any general consent to service of process in
any jurisdiction where it is not as of the date hereof then so subject or
(iii) subject itself to taxation in any such jurisdiction if it is not so
subject.
(h) Unless any Registrable Securities shall be in book-entry only
form, the Company shall cooperate with the Holders of Registrable
Securities to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold pursuant to any
Shelf Registration Statement free of any restrictive legends and in such
permitted denominations and registered in such names as Holders may request
in connection with the sale of Registrable Securities pursuant to such
Shelf Registration Statement.
(i) Upon the occurrence of any event contemplated by paragraph
3(c)(2)(iii) above, the Company shall promptly prepare a post-effective
amendment to any Shelf Registration Statement or an amendment or supplement
to the related Prospectus or file any other required document so that, as
thereafter delivered to purchasers of the Registrable Securities included
therein, the Prospectus will not include an untrue statement of a material
fact or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading (except, in each case, for an untrue statement of a material
fact or omission of a material fact made in reliance on and in conformity
with written information furnished to the Company by or on behalf of
Holders specifically for use therein). The Company agrees to notify the
Holders to suspend use of the Prospectus, and the Holders shall suspend use
of the Prospectus, and not communicate such material non-public information
to any third party, and not sell or purchase, or offer to sell or purchase,
any securities of the Company, until the Company has amended or
supplemented the Prospectus so it does not contain any such misstatement or
omission. Subject to Section 2(d), at such time as such public disclosure
is otherwise made or the Company determines in good faith that such
disclosure is not necessary, the Company agrees to notify the Holders of
such determination and to amend or supplement the Prospectus if necessary,
so it does not
12
contain any such untrue statement or omission therein and to furnish the
Holders such numbers of copies of the Prospectus as so amended or
supplemented as the Holders may reasonably request.
(j) Not later than the effective date of any Shelf Registration
Statement hereunder, the Company shall provide a CUSIP number for all
Registrable Securities covered by any Shelf Registration Statement and
provide the Trustee with certificates for the Notes that are in a form
eligible for deposit with DTC.
(k) The Company shall use its best efforts to comply with all
applicable rules and regulations of the Commission and shall make generally
available to its securityholders or otherwise provide in accordance with
Section 11(a) of the 1933 Act as soon as practicable after the effective
date of the applicable Shelf Registration Statement an earnings statement
satisfying the provisions of Section 11(a) of the 1933 Act.
(l) The Company shall its best efforts to cause the Indenture to
be qualified under the Trust Indenture Act in a timely manner.
(m) The Company may require each Holder of Registrable Securities
to be sold pursuant to any Shelf Registration Statement to furnish to the
Company such information regarding the Holder and the distribution of such
Registrable Securities as the Company may from time to time reasonably
require for inclusion in such Shelf Registration Statement and the Company
may exclude from such registration the Registrable Securities of any Holder
that fails to furnish such information within a reasonable time after
receiving such request, and the Company shall have no obligation to
register under the Securities Act the Registrable Securities of any Holder
who fails to furnish such information as provided in this paragraph.
(n) The Company will use its best efforts to cause the Common
Stock issuable upon conversion of the Notes to be listed on the New York
Stock Exchange on or prior to the effective date of any Shelf Registration
Statement hereunder.
(o) Upon (i) the filing of any Shelf Registration Statement and
(ii) the effectiveness of any Shelf Registration Statement, the Company
shall announce the same, in each case by release to Reuters Economic
Services and Bloomberg Business News (or any successor thereto).
13
(p) The Company shall use its best efforts to take all other
steps necessary to effect the registration, offering and sale of the
Registrable Securities covered by the Shelf Registration Statement
contemplated hereby.
Section 4. Registration Expenses. Except as otherwise provided in
Section 6, the Company shall bear all fees and expenses incurred in
connection with the performance of its obligations under Sections 2 and 3
and shall bear or reimburse the Holders for the reasonable fees and
disbursements of not more than one counsel designated by the Company and
reasonably acceptable to the Holders of a majority of the Registrable
Securities covered by the Shelf Registration Statement to act as counsel
therefor in connection therewith. Notwithstanding the foregoing, the
Holders of Registrable Securities being registered shall pay all agency
fees and commissions and underwriting discounts and commissions and
transfer taxes, if any, attributable to such sale of Registrable
Securities.
Section 5. Indemnification and Contribution . (a) In connection with
any Shelf Registration Statement, the Company shall indemnify and hold
harmless the Initial Purchasers, each Holder, each underwriter who
participates in an offering of Registrable Securities, and each person, if
any, who controls any of such parties 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 Shelf
Registration Statement (or any amendment thereto) covering Registrable
Securities, 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,
14
provided that (subject to Section 5(d) below) any such settlement is
effected with the written consent of the Company; and
(iii) against any and all expenses whatsoever, as incurred
(including fees and disbursements of counsel chosen by an 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 to the extent arising out of an
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 the Initial Purchasers, such Holder or any underwriter in
writing expressly for use in the Shelf Registration Statement (or any
amendment thereto) or any Prospectus (or any amendment or supplement
thereto).
(b) Each Holder agrees, severally and not jointly, to indemnify
and hold harmless the Company, the Initial Purchasers, each underwriter who
participates in an offering of Registrable Securities 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, from and against any and all
loss, liability, claim, damage and expense described in the indemnity
contained in Section 5(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 furnished to the
Company by such selling 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
the Shelf Registration Statement.
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action or
proceeding
15
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 5 (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.
(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 5(a)(ii) effected without
its written consent if (i) such settlement is entered into more than 45
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 in accordance with such request prior to the date of such
settlement.
(e) If the indemnification provided for in this Section 5 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
16
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 5
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 5. The aggregate amount of losses,
liabilities, claims, damages and expenses incurred by an indemnified party
and referred to above in this Section 5 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.
Notwithstanding the provisions of this Section 5, no Initial
Purchaser shall be required to contribute any amount in excess of the
amount by which the total price at which the Notes 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 5, 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
17
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 5(e) are several in proportion to the principal
amount of Notes set forth opposite their respective names in Schedule A to
the Purchase Agreement and not joint.
Section 6. Underwritten Offering.
---------------------
(a) The Holders of Registrable Securities covered by the Shelf
Registration Statement who desire to do so may sell such Registrable
Securities in an underwritten offering in accordance with the conditions
set forth below. In any such underwritten offering, the investment banker
or bankers and manager or managers that will administer the offering will
be selected by, and the underwriting arrangements with respect thereto will
be approved by, the Holders of a majority of the Registrable Securities to
be included in such offering; provided, however , that (i) such investment
bankers and managers and underwriting arrangements must be reasonably
satisfactory to the Company and (ii) the Company shall not be obligated to
arrange for more than one underwritten offering during the Effectiveness
Period. No Holder may participate in any underwritten offering contemplated
hereby unless such Holder (i) agrees to sell such Holder's Registrable
Securities in accordance with any approved underwriting arrangements, (ii)
completes and executes all reasonable questionnaires, powers of attorney,
indemnities, underwriting agreements, lock-up letters and other documents
required under the terms of such approved underwriting arrangements and
(iii) at least 30% of the outstanding Registrable Securities are included
in such underwritten offering. The Holders participating in any
underwritten offering shall be responsible for any expenses customarily
borne by selling securityholders, including underwriting discounts and
commissions and fees and expenses of counsel to the selling securityholders
and shall reimburse the Company for the fees and disbursements of its
counsel, its independent public accountants and any printing expenses
incurred in connection with such underwritten offering. Notwithstanding the
foregoing, upon receipt of a request from the Managing Underwriter or a
representative of Holders of a majority of the Registrable Securities
outstanding to prepare and file an amendment or supplement to the Shelf
Registration Statement and Prospectus in connection with an underwritten
offering, the Company may delay the filing of any such amendment or
supplement for up to 90 days if the Company in good faith have a valid
business reason for such delay.
(b) The Company shall enter into such customary agreements
(including underwriting agreements in customary form) which are reasonably
18
acceptable to the Company, and take all other reasonably requested actions
in order to expedite or facilitate the registration or the disposition of
the Registrable Securities, and in connection therewith, if an underwriting
agreement is entered into, cause the same to contain indemnification
provisions and procedures substantially identical to those set forth in
Section 5 (or such other provisions and procedures acceptable to the
Managing Underwriters, if any) with respect to all parties to be
indemnified pursuant to Section 5.
(c) Each Holder of Registrable Securities agrees, if requested
(pursuant to a timely written notice) by the managing underwriters in an
underwritten offering made pursuant to a Shelf Registration Statement, not
to effect any private sale or distribution (including a sale pursuant to
Rule 144(k) and Rule 144A, but excluding non-public sales to any of its
affiliates, officers, directors, employees and controlling person) of any
of the Notes in the case of an underwritten offering of the Notes, or the
Common Stock, in the case of an underwritten offering of shares of Comon
Stock constituting Registrable Securities, during the period beginning 10
days prior to, and ending 90 days after the closing date of such
underwritten offering.
(d) The Company shall (i) make reasonably available for
inspection by the Holders of Registrable Securities to be registered
thereunder, any underwriter participating in any disposition pursuant to
such Shelf Registration Statement, and any attorney, accountant or other
agent retained by such Holders or any such underwriter all relevant
financial and other records, pertinent corporate documents and properties
of the Company and its subsidiaries; (ii) cause the Company's officers,
directors and employees to make reasonably available for inspection all
relevant information reasonably requested by such Holders or any such
underwriter, attorney, accountant or agent in connection with any such
Shelf Registration Statement, in each case as is customary for similar due
diligence examinations; provided, however, that any information that is
designated in writing by the Company, in good faith, as confidential at the
time of delivery of such information shall be kept confidential by such
Holders or any such underwriter, attorney, accountant or agent, unless such
disclosure is made in connection with a court proceeding or required by
law, or such information becomes available to the public generally or
through a third party without an accompanying obligation of
confidentiality; and provided further that the foregoing inspection and
information gathering shall, to the greatest extent possible, be
coordinated on behalf of the Holders and the other parties entitled thereto
by one counsel designated by and on behalf of such Holders and other
parties reasonably acceptable to the Company; (iii) make such
representations and warranties to the Holders of Registrable Securities
registered thereunder and the underwriters, if any,
19
in form, substance and scope as are customarily made by companies to
underwriters in primary underwritten offerings and covering matters
including, but not limited to, those set forth in the Purchase Agreement;
(iv) obtain opinions of counsel to the Company (who may be the general
counsel of the Company) and updates thereof (which counsel and opinions (in
form, scope and substance) shall be reasonably satisfactory to the Managing
Underwriters, if any) in customary form addressed to each selling Holder
and the underwriters, if any, covering such matters as are customarily
covered in opinions requested in underwritten offerings and such other
matters as may be reasonably requested by such Holders and underwriters (it
being agreed that the matters to be covered by such opinion or a written
statement by such counsel delivered in connection with such opinions shall
include, without limitation, as of the date of the opinion and as of the
effective date of the Shelf Registration Statement or most recent
post-effective amendment thereto, as the case may be, the absence from such
Shelf Registration Statement and the prospectus included therein, as then
amended or supplemented, including the documents incorporated by reference
therein, of an untrue statement of a material fact or the omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading); (v) obtain "comfort letters" and
updates thereof from the independent public accountants of the Company
(and, if necessary, any other independent public accountants of any
subsidiary of the Company or of any business acquired by the Company for
which financial statements and financial data are, or are required to be,
included in the Shelf Registration Statement), addressed to each such
Holder of Registrable Securities registered thereunder and the
underwriters, if any, in customary form and covering matters of the type
customarily covered in "comfort letters" in connection with primary
underwritten offerings; and (vi) deliver such other customary documents and
certificates as may be reasonably requested by any such Holders and the
Managing Underwriters, if any, including those to evidence compliance with
Section 3(i) and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the Company. The
foregoing actions set forth in clauses (iii), (iv), (v) and (vi) of this
Section 6(d) shall be performed at each closing under any underwritten
offering to the extent required thereunder.
Section 7. Miscellaneous.
-------------
(a) 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
20
adopted by the Commission 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 Commission.
(b) No Conflicting Agreements. The Company is not, as of the date
hereof, a party to, nor shall it, on or after the date of this Agreement,
enter into, any agreement with respect to its securities that conflicts
with the rights granted to the Holders of Registrable Securities in this
Agreement. The Company represents and warrants that the rights granted to
the Holders of Registrable Securities hereunder do not in any way conflict
with the rights granted to the holders of the Company's securities under
any other agreements.
(c) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, qualified,
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 the Initial Purchasers.
(d) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class
mail, telex, telecopier, or air courier guaranteeing overnight delivery:
1. if to a Holder, at the most current address given by such
Holder to the Company in accordance with the provisions of this
Section 7(d);
2. if to the Initial Purchasers, initially at the address
set forth in the Purchase Agreement; and
21
3. if to the Company, initially at its address set forth in
the Purchase Agreement.
All such notices and communications shall be deemed to have duly given when
received.
The Initial Purchasers or the Company by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
(e) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties and the Holders, including, without the need for an express
assignment or any consent by the Company thereto, subsequent Holders of
Registrable Securities. The Company hereby agrees to extend the benefits of
this Agreement to any Holder of Registrable Securities and any such Holder
may specifically enforce the provisions of this Agreement as if an original
party hereto.
(f) 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.
(g) Headings. The headings in this agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning
hereof.
(h) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS
OF THE STATE OF NEW YORK.
(i) Severability. In the event that any one of more of the
provisions contained herein, or the application thereof in any
circumstances, is held invalid, illegal or unenforceable in any respect for
any reason, the validity, legality and enforceability of any such provision
in every other respect and of the remaining provisions hereof shall not be
in any way impaired or affected thereby, it being intended that all of the
rights and privileges of the parties shall be enforceable to the fullest
extent permitted by law.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
22
Please confirm that the foregoing correctly sets forth the
agreement among the Company and you.
Very truly yours,COMMSCOPE, INC.
By: /s/ Xxxxxx Xxxxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
The foregoing Registration Rights Agreement is hereby confirmed
and accepted as of the date first above written.
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
CIBC WORLD MARKETS CORP.
By: XXXXXXX XXXXX & CO.Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
By: /s/ Xxxxx Xxxxxxxxx
--------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
