Exhibit 2.1
EXECUTION COPY
--------------
STOCK PURCHASE AGREEMENT
by and among
LUCENT TECHNOLOGIES INC.,
COMMSCOPE, INC.
and
THE FURUKAWA ELECTRIC CO., LTD.,
dated as of
October 9, 2002
Table of Contents
PAGE
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ARTICLE I PURCHASE OF STOCK.............................................1
Section 1.1 Purchase and Sale of Shares........................1
Section 1.2 Closings; Deliveries...............................2
Section 1.3 Registration Rights Agreement......................3
Section 1.4 Termination of Financing Agreement.................3
ARTICLE II REPRESENTATIONS AND WARRANTIES...............................3
Section 2.1 Representations and Warranties of Company..........3
Section 2.2 Representations and Warranties of Purchaser........5
Section 2.3 Representations and Warranties of Seller...........5
Section 2.4 Broker's Fee.......................................6
ARTICLE III MISCELLANEOUS...............................................7
Section 3.1 Notice.............................................7
Section 3.2 Transfer Taxes; Other Costs........................8
Section 3.3 Entire Agreement...................................8
Section 3.4 Amendments and Waivers.............................8
Section 3.5 Assignment.........................................8
Section 3.6 Governing Law; Consent to Jurisdiction.............8
Section 3.7 Waiver of Jury Trial...............................9
Section 3.8 Headings...........................................9
Section 3.9 Expenses...........................................9
Section 3.10 Counterparts.......................................9
Section 3.11 Publicity..........................................9
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INDEX OF DEFINED TERMS
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AGREEMENT.........................................................preamble
CLOSING.............................................................1.2(a)
CLOSING DATE........................................................1.2(a)
COMMON STOCK......................................................recitals
COMPANY...........................................................preamble
COMPANY ACQUIRED SHARES.............................................1.1(b)
COMPANY AGGREGATE PURCHASE PRICE....................................1.1(b)
EXCHANGE ACT........................................................2.1(e)
FINANCING AGREEMENT...............................................recitals
INVESTMENT SHARES.................................................recitals
LIENS...............................................................2.3(c)
PER SHARE PURCHASE PRICE............................................1.1(a)
PURCHASER.........................................................preamble
PURCHASER ACQUIRED SHARES...........................................1.1(a)
PURCHASER AGGREGATE PURCHASE PRICE..................................1.1(a)
PURCHASER SUB............................................................1
REGISTRATION RIGHTS AGREEMENT.......................................1.1(c)
SEC.................................................................2.1(e)
SEC DOCUMENTS.......................................................2.1(e)
SECURITIES ACT......................................................2.1(e)
SELLER............................................................preamble
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STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (this "AGREEMENT"), is made and entered
into as of October 9, 2002, by and among Lucent Technologies Inc., a
corporation organized under the laws of the State of Delaware (the
"SELLER"), CommScope, Inc., a corporation organized under the laws of the
State of Delaware (the "COMPANY") and The Furukawa Electric Co., Ltd., a
corporation organized under the laws of Japan (the "PURCHASER").
W I T N E S S E T H:
WHEREAS, Seller is the beneficial and record owner of 10,200,000
shares (the "INVESTMENT SHARES") of the issued and outstanding shares of
common stock, par value $.01 per share, of the Company (the "COMMON
STOCK");
WHEREAS, pursuant to the Financing Agreement among the Company, Seller
and Purchaser dated July 24, 2001 as amended as of November 9, 2001 (the
"FINANCING AGREEMENT"), the Company issued the Investment Shares to Seller
in lieu of a portion of the cash purchase price payable by Purchaser under
the Asset and Stock Purchase Agreement dated as of July 24, 2001, by and
between Seller and Purchaser.
WHEREAS, Seller desires to sell to Purchaser and the Company, and
Purchaser on the one hand and the Company on the other hand, desire to
purchase from Seller, the Purchaser Acquired Shares and the Company
Acquired Shares (each as defined herein), respectively, on the terms and
subject to the conditions contained in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, the parties agree as follows:
ARTICLE I
PURCHASE OF STOCK
Section 1.1 PURCHASE AND SALE OF SHARES. Upon the terms and subject to
the conditions contained in this Agreement:
(a) Seller agrees to sell and transfer to Purchaser and Purchaser
agrees to purchase from Seller, 7,656,900 shares of Common Stock (the
"PURCHASER ACQUIRED SHARES") for $5.20 per share (the "PER SHARE PURCHASE
PRICE") being equal to $39,815,880 in the aggregate (the "PURCHASER
AGGREGATE PURCHASE PRICE");
(b) Seller agrees to sell and transfer to the Company and the
Company agrees to purchase from Seller, 2,543,100 shares of Common Stock
(the "COMPANY ACQUIRED SHARES") for the Per Share Purchase Price being
equal to $13,224,120 in the aggregate (the "COMPANY AGGREGATE PURCHASE
PRICE"); and
Section 1.2 CLOSINGS; DELIVERIES. (a) Subject to the terms and
conditions set forth in this Agreement, the closing of the transactions
contemplated by this Agreement (the "CLOSING") shall take place
simultaneously with the execution and delivery of this Agreement at the
offices of Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx at Xxx Xxx Xxxx Xxxxx,
Xxx Xxxx, Xxx Xxxx, 00000 (the date of the Closing, the "CLOSING DATE").
(b) At the Closing;
(i) Seller will deliver to Purchaser one or more stock
certificates registered in the name of Purchaser with duly
executed stock powers endorsed in favor of Purchaser reflecting
the number of Shares acquired by Purchaser pursuant to Section
1.1(a) of this Agreement (or if Investment Shares are held in
electronic format, effect an electronic transfer to the account
of Purchaser) evidencing Purchaser's ownership of the number of
Shares acquired by Purchaser pursuant to Section 1.1(a) of this
Agreement;
(ii) Purchaser will deliver to Seller the Purchaser
Aggregate Purchase Price by wire transfer of immediately
available federal funds to the account previously specified by
Seller in writing;
(iii) Seller will deliver to the Company one or more stock
certificates registered in the name of the Company with duly
executed stock powers endorsed in favor of the Company (or effect
a book entry transfer to the account of the Company) evidencing
the Company's ownership of the Company Acquired Shares;
(iv) the Company will deliver to Seller the Company
Aggregate Purchase Price by wire transfer of immediately
available federal funds to the account previously specified by
Seller in writing;
(v) The Company and Purchaser shall execute and deliver a
stockholders agreement and registration rights agreement, each in
the form and substance as agreed to as of the date hereof between
the Company and Purchaser; and
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(vi) The Company and Purchaser shall execute and deliver an
amendment to the Amended and Restated Memorandum of
Understanding, dated as of November 15, 2001, between Purchaser
and the Company, in the form and substance as agreed to date
between the Company and Purchaser.
Section 1.3 REGISTRATION RIGHTS AGREEMENT. Effective as of the
Closing, Seller and the Company hereby agree that the Registration Rights
Agreement, dated as of November 16, 2001, between Seller and the Company is
terminated and of no further force or effect.
Section 1.4 TERMINATION OF FINANCING AGREEMENT. Effective as of the
Closing, the parties hereto agree that the Financing Agreement is
terminated and of no further force or effect.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1 REPRESENTATIONS AND WARRANTIES OF COMPANY. The Company
represents and warrants to each of Seller and Purchaser as follows:
(a) ORGANIZATION STANDING AND POWER. The Company is duly
organized, validly existing and in good standing under the laws of the
State of Delaware and has all requisite power and authority to own, lease
and otherwise hold and operate its assets and to carry on its business as
it is currently being conducted.
(b) AUTHORIZATION; ENFORCEABILITY. (i) The Company has full power
and authority to enter into and perform this Agreement; (ii) the execution
and delivery of this Agreement by the Company and the consummation by it of
the transactions contemplated hereby have been duly authorized by all
necessary corporate action; (iii) this Agreement has been duly executed and
delivered by the Company; and (iv) this Agreement constitutes a valid and
binding obligation of the Company enforceable against the Company in
accordance with its terms.
(c) NO RESTRICTIONS OR IMPEDIMENTS. Assuming Purchaser and its
Affiliates do not beneficially own (as determined pursuant to Rule 13d-3
under the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"))
any capital stock of the Company, Purchaser, as a result of the Purchaser
Acquired Shares and after giving effect to the Company's purchase of the
Company Acquired Shares, will not on the Closing Date (i) be an Acquiring
Person as defined in the Rights Agreement dated as of June 12, 1997, as
amended, between the Company and Mellon Investor Services LLC, as rights
agent or (ii) hold 15% or more of the
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outstanding voting stock of the Company. No Delaware law or other takeover
statute or similar law and no provision of the certificate of incorporation
or by-laws of the Company or any agreement to which the Company is a party
would impose restrictions which might adversely affect or delay the
consummation of the transactions contemplated by this Agreement.
(d) NO CONFLICTS. The execution, delivery and performance of this
Agreement and the consummation by the Company of the transactions
contemplated hereby will not conflict with, or constitute a default (or an
event which with notice or lapse of time or both would become a default)
under, or give rise to any rights of termination, amendment, acceleration
or cancellation of, or result in the creation of a lien or other
encumbrance on any property or asset of the Company or any of its
subsidiaries pursuant to any agreement, indenture or instrument to which
the Company or any of its subsidiaries is a party, in each case material to
the Company and its subsidiaries taken as a whole, or result in a violation
of its certificate of incorporation or by-laws or any law, rule,
regulation, order, judgment or decree applicable to the Company, any of its
subsidiaries or by which any property or asset of the Company is bound or
affected, in each case material to the Company and its subsidiaries taken
as a whole.
(e) SEC DOCUMENTS. The Company has, to its knowledge, filed all
required reports, schedules, forms, statements and other documents with the
Securities and Exchange Commission (the "SEC") since January 1, 2000 (any
of the foregoing filed prior to the date hereto are referred to herein as
the "SEC DOCUMENTS"). To the knowledge of the Company, as of their
respective dates, the SEC Documents complied in all material respects with
the requirements of the Securities Act of 1933, as amended (the "SECURITIES
ACT") or the Exchange Act, as the case may be, and the rules and
regulations of the SEC promulgated thereunder applicable to such SEC
Documents, and none of the SEC Documents contained any untrue statement of
a material fact or omitted to state a material fact required to be stated
therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading. To the
knowledge of the Company, as of their dates, the financial statements of
the Company included in the SEC Documents comply as to form in all material
respects with applicable accounting requirements and the published rules
and regulations of the SEC with respect thereto, have been prepared in
accordance with generally accepted accounting principles applied on a
consistent basis during the periods involved (except as may be indicated in
the notes thereto) and fairly present in all material respects the
consolidated financial position of the Company and its consolidated
subsidiaries as of the dates thereof and the consolidated results of their
operations and cash flows for the periods then ended (subject, in the case
of unaudited statements, to normal and recurring year-end audit
adjustments).
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(f) FIRPTA. The Company is not a United States real property
holding corporation within the meaning of section 897(c)(2) of the United
States Internal Revenue Code of 1986, as amended.
Section 2.2 REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser
represents and warrants to each of the Company and Seller as follows:
(a) ORGANIZATION. Purchaser is duly organized and validly
existing under the laws of Japan and has all the requisite power and
authority to own, lease and otherwise hold and operate its assets and to
conduct its business as it is currently being conducted.
(b) AUTHORIZATION; ENFORCEABILITY. (i) Purchaser has full power
and authority to enter into and perform this Agreement; (ii) the execution
and delivery of this Agreement by Purchaser and the consummation by it of
the transactions contemplated hereby have been duly authorized by all
necessary corporate action; (iii) this Agreement has been duly executed and
delivered by Purchaser; and (iv) this Agreement constitutes a valid and
binding obligation of Purchaser enforceable against Purchaser in accordance
with its terms.
(c) SECURITIES ACT. (i) the Purchaser Acquired Shares acquired by
Purchaser pursuant to this Agreement will not be transferred or otherwise
disposed of by Purchaser except in a transaction registered, or exempt from
registration, under the Securities Act; (ii) Purchaser is acquiring the
Purchaser Acquired Shares contemplated to be purchased by it under this
Agreement for its own account, for investment and not with a view to the
distribution thereof within the meaning of the Securities Act; (iii)
Purchaser understands that the Purchaser Acquired Shares have not been, and
will not be, registered under the Securities Act or any state securities
laws, by reason of their acquisition by Seller in a transaction exempt from
the registration requirements thereof, and that the Purchaser Acquired
Shares may not be sold unless such sale is registered under the Securities
Act and applicable state securities laws or is exempt from registration
thereunder; (iv) Purchaser further understands that the exemption from
registration afforded by Rule 144 under the Securities Act (the provisions
of which are known by Purchaser) depends on the satisfaction of various
conditions and that, if applicable, Rule 144 may afford the basis for sales
of Purchaser Acquired Shares only in limited amounts; (v) Purchaser is an
"accredited investor" (as defined in Rule 501(a) under the Securities Act);
and (vi) Purchaser has such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of the
investment in the Purchaser Acquired Shares hereunder and is able to bear
the economic risk of loss of such investment.
Section 2.3 REPRESENTATIONS AND WARRANTIES OF SELLER. Seller
represents and warrants to each of the Company and Purchaser as follows:
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(a) ORGANIZATION. Seller is duly organized, validly existing and
in good standing under the laws of the State of Delaware and has all the
requisite power and authority to own, lease and otherwise hold and operate
its assets and to conduct its business as it is currently being conducted.
(b) AUTHORIZATION; ENFORCEABILITY. (i) Seller has full power and
authority to enter into and perform this Agreement; (ii) the execution and
delivery of this Agreement by Seller and the consummation by it of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action; (iii) this Agreement has been duly executed and delivered
by Seller; and (iv) this Agreement constitutes a valid and binding
obligation of Seller enforceable against Seller in accordance with its
terms.
(c) TITLE TO COMPANY SHARES. Seller has (i) good and valid title
to the Investment Shares and (ii) owns the Investment Shares free and clear
of all liens, claims, security interests, pledges, mortgages, deeds of
trust, rights of first refusal, restrictions (other than restrictions and
applicable restrictive legends under applicable federal and state
securities laws) and other encumbrances ("LIENS") other than Liens which
will automatically release simultaneously with the Closing. The sale and
delivery of the Investment Shares as contemplated by this Agreement are not
subject to any preemptive right or right of first refusal, "tag along" or
similar right, or right of redemption or repurchase. Upon delivery of the
Purchaser Acquired Shares to Purchaser as provided in Section 1.2, Seller
will transfer beneficial ownership of such Purchaser Acquired Shares and
Purchaser will acquire good and valid title to such Purchaser Acquired
Shares, in each case free and clear of all Liens other than Liens created
by the Purchaser. Upon delivery of the Company Acquired Shares to the
Company as provided in Section 1.2, Seller will transfer beneficial
ownership of such Company Acquired Shares and the Company will acquire good
and valid title to such Company Acquired Shares, in each case free and
clear of all Liens other than Liens created by the Company.
Section 2.4 BROKER'S FEE. Each party represents that it has not made
any agreement or taken any other action which might cause any person to
become entitled to a broker's or finder's fee or commission as a result of
the transactions contemplated by this Agreement.
ARTICLE III
MISCELLANEOUS
Section 3.1 NOTICE. Any notice, consent, waiver or demand pursuant to
or in connection with this Agreement must be in writing and will be deemed
to be delivered when personally delivered or when actually received by
facsimile transmission, overnight courier of national reputation or United
States mail, at the
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address or facsimile number stated below (or at such other address or
facsimile number as such party may designate by written notice to all other
parties), with copies sent to the persons indicated:
(a) If to the Company, to:
CommScope, Inc.
0000 XxxxXxxxx Xxxxx XX,
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxx, XX
Facsimile: (000) 000-0000
With a copy to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx, 00000
Attention: Xxxxxxxxxxx Xxxx
Facsimile: (000) 000-0000
(b) If to Seller, to :
Lucent Technologies Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000-0000
Attention: Vice President - Law
Facsimile: (000) 000-0000
(c) If to Purchaser, to:
The Furukawa Electric Co., Ltd.
0-0, Xxxxxxxxxx 0-xxxxx
Xxxxxxx-Xx
Xxxxx 100-8322
Attention: Xxxxxxxx Xxxxx
General Manager, Legal and
General Affairs Department
Facsimile: 011-81-3-3286-3919
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With a copy to:
Masuda & Ejiri
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx
Facsimile: (000) 000-0000
Section 3.2 TRANSFER TAXES; OTHER COSTS. The Company will pay all
sales, use, transfer, stamp, conveyance, value added or other similar
taxes, duties, excise or governmental charges imposed by any United States
or state taxing authority in connection with the sale of Investment Shares
pursuant to this Agreement.
Section 3.3 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement among the parties hereto with respect to the subject matters
hereof and supercedes all prior understandings or agreements, oral or
written, among the parties hereto.
Section 3.4 AMENDMENTS AND WAIVERS. This Agreement may only be
amended, modified, supplemented or a provision hereof waived, by a written
instrument executed by the party against whom such change, waiver or
amendment is sought to be enforced.
Section 3.5 ASSIGNMENT. This Agreement will apply to, inure to the
benefit of, and be binding upon and enforceable against the parties to this
Agreement and their respective legal representatives, successors and
permitted assigns. No party to this Agreement may assign this Agreement
without the prior written consent of all of the other parties hereto.
Section 3.6 GOVERNING LAW; CONSENT TO JURISDICTION. This Agreement
shall be construed and enforced in accordance with, and the rights and
obligations of the parties hereto shall be governed by, the laws of the
State of New York, without giving effect to the conflicts of law principles
thereof. Each of the parties hereto hereby irrevocably and unconditionally
consents to submit to the exclusive jurisdiction of the United States
District Court for the Southern District of New York for any action or
proceeding arising out of or relating to this Agreement and the
transactions contemplated hereby (and agrees not to commence any action or
proceeding relating thereto except in such courts), and further agrees that
service of any process, summons, notice or document by United States
registered mail to its respective address set forth in Section 3.1 hereof
shall be effective service of process for any action or proceeding brought
against it in any such court. Each of the parties hereto hereby irrevocably
and unconditionally waives any objection to
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the laying of venue of any action or proceeding arising out of this
Agreement or the transactions contemplated hereby in the United States
District Court for the Southern District of New York, and hereby further
irrevocably and unconditionally waives and agrees not to plead or claim in
any such court that any such action or proceeding brought in any such court
has been brought in an inconvenient forum.
Section 3.7 WAIVER OF JURY TRIAL. Each of the parties hereto hereby
waives to the fullest extent permitted by applicable law, any right it may
have to a trial by jury in respect of any litigation directly or indirectly
arising out of, under or in connection with this Agreement. Each of the
parties hereto (a) certifies that no representative of any other party has
represented, expressly or otherwise, that such other party would not, in
the event of litigation, seek to enforce the foregoing waiver and (b)
acknowledges that it and the other parties hereto have been induced to
enter into this Agreement by, among other things, the mutual waivers and
certifications in this Section 3.7.
Section 3.8 HEADINGS. The descriptive headings of the several sections
and paragraphs of this Agreement are inserted for reference only and shall
not control or otherwise affect the meaning hereof.
Section 3.9 EXPENSES. Except as otherwise provided in Section 3.2 of
this Agreement, each party hereto will be responsible for their own
expenses (including without limitation, legal and accounting fees) incurred
in connection with the transactions contemplated under this Agreement,
whether or not such transactions are consummated.
Section 3.10 COUNTERPARTS. This Agreement may be executed in any
number of separate counterparts, each of which will be deemed to be an
original, but which together will constitute one and the same instrument.
Section 3.11 PUBLICITY. The Company, Purchaser and Seller agree that
no public release or announcement concerning the transactions contemplated
hereby shall be issued by any party, without the prior consent of all of
the other parties, hereto (which consent shall not be unreasonably
withheld), except such release or announcement as may be required by law or
any rule or regulation of any United States or foreign securities exchange,
in which case the party required to make the release or announcement shall
allow the other parties reasonable time (subject to the requirements of
applicable law) to comment on such release or announcement in advance of
such issuance.
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IN WITNESS WHEREOF, each party hereto has duly executed, or has
caused this Agreement to be duly executed, as of the date first above
written.
SELLER:
LUCENT TECHNOLOGIES INC.
By: /s/ Xxxxxxx Xxxx - Xxxxxx
--------------------------------
Name: Xxxxxxx Xxxx - Xxxxxx
Title: Senior Vice President
and Treasurer
COMPANY:
COMMSCOPE, INC.
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Chairman and Chief Executive
Officer
PURCHASER:
THE FURUKAWA ELECTRIC CO., LTD.
By: /s/ Xxxxx Xxxx
--------------------------------
Name: Xxxxx Xxxx
Title: Managing Director
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