Exhibit 4.1
EXECUTION COPY
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STOCKHOLDERS AGREEMENT
by and between
COMMSCOPE, INC.
and
THE FURUKAWA ELECTRIC CO., LTD.
dated as of
October 9, 2002
TABLE OF CONTENTS
PAGE
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Section 1.1. CERTAIN DEFINITIONS......................................1
Section 2.1. REPRESENTATIONS AND WARRANTIES OF COMMSCOPE..............4
Section 2.2. REPRESENTATIONS AND WARRANTIES OF FURUKAWA...............5
Section 3.1. STANDSTILL AGREEMENT.....................................5
Section 4.1 VOTING...................................................8
Section 5.1. COMMON STOCK PUT RIGHT...................................8
Section 6.1. CALL RIGHT...............................................9
Section 7.1. SPECIFIC PERFORMANCE; INJUNCTION; PAYMENT OF COSTS......10
Section 8.1. [INTENTIONALLY OMITTED].................................10
Section 9.1 FURTHER ASSURANCES......................................10
Section 10.1. LEGENDS.................................................11
Section 11.1 NOTICE..................................................12
Section 11.2 ENTIRE AGREEMENT........................................13
Section 11.3 AMENDMENTS AND WAIVERS..................................13
Section 11.4 ASSIGNMENT..............................................13
Section 11.5 GOVERNING LAW; CONSENT TO JURISDICTION..................13
Section 11.6 WAIVER OF JURY TRIAL....................................14
Section 11.7 HEADINGS................................................14
Section 11.8 COUNTERPARTS............................................14
Section 11.9 CONTINUING EFFECT OF MOU................................14
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INDEX OF DEFINED TERMS
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13D Group....................................................Section 1.1
Affiliate....................................................Section 1.1
Agreement.......................................................Preamble
Amended Rights Agreement.....................................Section 1.1
Beneficial Owner.............................................Section 1.1
Beneficial Ownership.........................................Section 1.1
Beneficially Own...............................................Section 1
Board........................................................Section 1.1
Business Combination.........................................Section 1.1
Call Notice Date..........................................Section 6.1(a)
Call Price................................................Section 6.1(a)
Call Right................................................Section 6.1(a)
Change in Control............................................Section 1.1
Change in Control Transaction................................Section 1.1
Collar Price..............................................Section 6.1(a)
Common Stock.................................................Section 1.1
Common Stock Put Amount...................................Section 5.1(a)
Common Stock Put Right....................................Section 5.1(a)
CommScope.......................................................Preamble
control......................................................Section 1.1
Deemed Sold Shares........................................Section 6.1(a)
Derivative Securities........................................Section 1.1
Exchange Act.................................................Section 1.1
Fair Market Value............................................Section 1.1
Furukawa........................................................Preamble
Furukawa Purchase Transaction.............................Section 6.1(c)
Governmental Entity..........................................Section 1.1
Holding Period............................................Section 3.1(c)
Incumbent Board..............................................Section 1.1
Market Price..............................................Section 6.1(a)
MOU..........................................................Section 1.1
OFS BrightWave LLC Agreement.................................Section 1.1
OFS BrightWave Put...........................................Section 1.1
Outstanding Stock............................................Section 1.1
Outstanding Voting Securities................................Section 1.1
Person.......................................................Section 1.1
Purchase Agreement..............................................Recitals
Rights.......................................................Section 1.1
Sale.........................................................Section 1.1
Sell.........................................................Section 1.1
Selling......................................................Section 1.1
Shares.......................................................Section 1.1
Sold.........................................................Section 1.1
Standstill Period.........................................Section 3.1(a)
Subsidiary...................................................Section 1.1
Voting Securities............................................Section 1.1
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STOCKHOLDERS AGREEMENT
This STOCKHOLDERS AGREEMENT (this "AGREEMENT"), dated as of
October 9, 2002, by and between CommScope, Inc., a Delaware corporation
("COMMSCOPE") and The Furukawa Electric Co., Ltd., a corporation organized
under the laws of Japan ("FURUKAWA").
W I T N E S S E T H:
WHEREAS, CommScope and Furukawa are parties to that certain Stock
Purchase Agreement, dated as of October 9, 2002 (the "PURCHASE AGREEMENT"),
pursuant to which Furukawa is purchasing from Lucent Technologies Inc., a
Delaware corporation, 7,656,900 shares of Common Stock of CommScope, and
WHEREAS, the parties hereto will enter into this Agreement and
the parties hereto deem it to be in their best interests to establish and
set forth their agreement with respect to certain rights and obligations
associated with Furukawa's ownership of Shares (as defined below).
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and obligations hereinafter set forth, the parties hereto hereby
agree as follows:
Section 1.1. CERTAIN DEFINITIONS. As used herein, the following
terms shall have the following meanings (capitalized terms used herein and
not otherwise defined herein shall have the meanings assigned to such terms
in the Purchase Agreement):
"AFFILIATE" of a Person has the meaning set forth in Rule 12b-2
under the Exchange Act.
"AMENDED RIGHTS AGREEMENT" means the Rights Agreement between
CommScope and Mellon Investor Services LLC dated as of June 12, 1997, as
amended or replaced after the date hereof.
"BENEFICIALLY OWN" with respect to any securities means having
"beneficial ownership" of such securities (as determined pursuant to Rule
13d-3 under the Exchange Act, as in effect on the date hereof, without
limitation by the 60-day provision in paragraph (d)(1)(i) thereof). The
terms "BENEFICIAL OWNERSHIP" and "BENEFICIAL OWNER" have correlative
meanings.
"BOARD" shall mean the Board of Directors of CommScope.
"CHANGE IN CONTROL" means, with respect to any specified company,
the occurrence of any of the following events:
(i) the acquisition by any individual, entity or group (within
the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) of
beneficial ownership (within the meaning of Rule 13d-3 promulgated under
the Exchange Act) of more than 50% of either (A) the then outstanding
shares of common stock (the "OUTSTANDING STOCK") of such company or (B) the
combined voting power of the then outstanding voting securities entitled to
vote generally in the election of directors or managers (the "OUTSTANDING
VOTING SECURITIES") of such company; PROVIDED that, for purposes of this
clause (i), any acquisition by such company shall not constitute a Change
in Control of such company;
(ii) individuals who, as of the date hereof, constitute the board
of directors (the "INCUMBENT BOARD") of such company cease for any reason
to constitute at least 50% of the board of directors of such company;
PROVIDED that any individual becoming a director subsequent to the date
hereof whose election, or nomination for election by such company's
stockholders, was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board (but excluding, for this
purpose, any such individual whose initial assumption of office occurs as a
result of an actual or threatened election contest with respect to the
election or removal of directors or other actual or threatened solicitation
of proxies or consents by or on behalf of a individual, entity or group (as
defined above) other than the board of directors of such company) shall be
considered a member of the Incumbent Board;
(iii) consummation by such company of a reorganization, merger or
consolidation or sale or other disposition of all or substantially all of
its assets or the acquisition of assets or stock of another corporation (a
"BUSINESS COMBINATION"), in each case, unless, following such Business
Combination, all or substantially all of the individuals and entities who
were the beneficial owners, respectively, of the Outstanding Stock and
Outstanding Voting Securities immediately prior to such Business
Combination beneficially own, directly or indirectly, 50% or more of the
then Outstanding Stock and the combined voting power of the then
Outstanding Voting Securities, as the case may be, of the corporation or
other entity resulting from such Business Combination; or
(iv) approval by the stockholders of such company of a complete
liquidation or dissolution of such company.
"CHANGE IN CONTROL TRANSACTION" means a transaction which, if
consummated, would result in a Change in Control of CommScope.
"COMMON STOCK" means the common stock, par value $0.01 per share,
of CommScope.
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"CONTROL" with respect to any Person means the possession, direct
or indirect, of the power to direct or cause the direction of the
management and policies of such Person, whether through the ownership of
voting securities, by contract or otherwise.
"DERIVATIVE SECURITIES" means any subscriptions, options,
conversion rights, warrants, phantom stock rights or other agreements,
securities or commitments of any kind obligating CommScope to issue, grant,
deliver or sell, or cause to be issued, granted, delivered or sold (i) any
Voting Securities of CommScope, (ii) any securities convertible into or
exchangeable for any Voting Securities of CommScope, or (iii) any
obligations measured by the price or value of any shares of capital stock
of CommScope.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended and the rules and regulations promulgated thereunder.
"FAIR MARKET VALUE" means, with respect to any date, the
aggregate value determined by multiplying (x) the average per share closing
price of the Common Stock as reported on the New York Stock Exchange
Composite Transaction Tape (as reported by THE WALL STREET JOURNAL
(Northeast edition) or if not reported thereby, by any other authoritative
source) for the ten (10) trading days immediately preceding such date by
(y) the number of Shares Beneficially Owned by Furukawa and Furukawa's
Affiliates.
"GOVERNMENTAL ENTITY" means any government or any agency, bureau,
board, commission, court, department, political subdivision, tribunal, or
other instrumentality of any government (including any regulatory or
administrative agency), whether federal, state or local, domestic or
foreign.
"OFS BRIGHTWAVE PUT" means the right of CommScope to sell its
interests in OFS BrightWave, LLC to Furukawa or its designees pursuant to
Section 5.6 of the Amended and Restated Memorandum of Understanding by and
between CommScope and Furukawa dated as of November 15, 2001 (as amended by
Amendment No. 1 dated as of October 9, 2002 to the Amended and Restated
Memorandum of Understanding, the "MOU").
"OFS BRIGHTWAVE, LLC AGREEMENT" means the Amended and Restated
Limited Liability Company Agreement of OFS BrightWave, LLC by and among OFS
BrightWave, LLC, Fitel USA Corp. and CommScope Optical Technologies, Inc.
dated November 16, 2001.
"PERSON" means any individual, corporation, association,
partnership, trust or other entity or organization, including any
Governmental Entity.
"RIGHTS means the Rights as defined in the Amended Rights
Agreement.
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"SELL" means as to any shares of Common Stock, to sell, or in any
other way directly or indirectly, transfer, assign, distribute, pledge,
encumber or otherwise dispose of, either voluntarily or involuntarily; the
terms "SALE", "SELLING" and "SOLD" shall have meanings correlative to the
foregoing. For the avoidance of doubt, any transaction that results in any
Subsidiary of Furukawa's which Beneficially Owns Shares, ceasing to be a
Subsidiary of Furukawa, will constitute a Sale of Shares for purposes of
this Agreement.
"SHARES" means the shares of Common Stock purchased by Furukawa
pursuant to the Purchase Agreement.
"SUBSIDIARY" of any Person means any corporation or other legal
entity of which such Person, either alone or through or together with any
other Subsidiary owns directly or indirectly more than 50% of the stock or
other equity interests, the holders of which are generally entitled to vote
for the election of members of the board of directors or other governing
body of such corporation or other legal entity.
"13D GROUP" shall mean any group of Persons who, with respect to
those acquiring, holding, voting or disposing of Voting Securities would,
assuming ownership of the requisite percentage thereof, be required under
Section 13(d) of the Exchange Act and the rules and regulations thereunder
to file a statement on Schedule 13D with the Securities and Exchange
Commission as a "person" within the meaning of Section 13(d)(3) of the
Exchange Act, or who would be considered a "person" for purposes of Section
13(g)(3) of the Exchange Act.
"VOTING SECURITIES" means the shares of Common Stock and any
other securities of CommScope entitled to vote generally for the election
of directors, and any securities (other than employee stock options) which
are convertible into, or exercisable or exchangeable for, Voting
Securities.
Section 2.1. REPRESENTATIONS AND WARRANTIES OF COMMSCOPE.
CommScope represents and warrants to Furukawa as follows:
(a) ORGANIZATION, STANDING AND POWER. CommScope is duly
organized, validly existing and in good standing under the laws of the
State of Delaware and has all requisite power and authority to own, lease
and otherwise hold and operate its assets and to conduct its business as it
is currently being conducted.
(b) AUTHORIZATION; ENFORCEABILITY. (i) CommScope has full power
and authority to enter into and perform this Agreement; (ii) the execution
and delivery of this Agreement by CommScope and the consummation by it of
the transactions contemplated hereby have been duly authorized by all
necessary corporate action; (iii) this Agreement
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has been duly executed and delivered by CommScope; and (iv) this Agreement
constitutes a valid and binding obligation of CommScope enforceable against
CommScope in accordance with its terms.
Section 2.2. REPRESENTATIONS AND WARRANTIES OF FURUKAWA. Furukawa
represents and warrants to CommScope as follows:
(a) ORGANIZATION AND POWER. Furukawa is duly organized and
validly existing under the laws of Japan and has all the requisite power
and authority to own, lease and otherwise hold and operate its assets and
to conduct its business as it is currently being conducted.
(b) AUTHORIZATION; ENFORCEABILITY. (i) Furukawa has full power
and authority to enter into and perform this Agreement; (ii) the execution
and delivery of this Agreement by Furukawa and the consummation by it of
the transactions contemplated hereby have been duly authorized by all
necessary corporate action; (iii) this Agreement has been duly executed and
delivered by Furukawa; and (iv) this Agreement constitutes a valid and
binding obligation of Furukawa enforceable against Furukawa in accordance
with its terms.
Section 3.1. STANDSTILL AGREEMENT.
(a) During the period commencing on the date hereof and ending on
the tenth anniversary of this Agreement (the "STANDSTILL PERIOD"), without
the prior written consent of CommScope, Furukawa shall not, and Furukawa
shall cause Furukawa's Affiliates not to, directly or indirectly, alone or
in concert with others:
(i) acquire, offer or propose to acquire or agree to
acquire, whether by purchase, tender or exchange offer, through the
acquisition of control of another person, by joining a partnership, limited
partnership, syndicate or other 13D Group or otherwise, Beneficial
Ownership of any Voting Securities, Derivative Securities or any other
securities of CommScope or any rights to acquire (whether currently, upon
lapse of time, following the satisfaction of any conditions, upon the
occurrence of any event or any combination of the foregoing) any Voting
Securities, other than (a) the purchase of Voting Securities expressly
permitted by the Purchase Agreement or (b) the acquisition of Voting
Securities, Derivative Securities or any other securities of CommScope or
any rights to acquire any Voting Securities as a result of any stock split,
stock dividends or other distributions, recapitalizations or offerings made
available by CommScope to holders of Voting Securities generally;
(ii) propose or seek to effect any merger, business
combination, restructuring, recapitalization or similar transaction
involving CommScope or any of its
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Subsidiaries or the sale or other disposition outside the ordinary course
of business of any portion of the assets of CommScope or any of its
Subsidiaries other than CommScope's Membership Interest in OFS BrightWave,
LLC (as defined in the OFS BrightWave, LLC Agreement);
(iii) deposit any Voting Securities in a voting trust or
subject any Voting Securities to any arrangement or agreement with respect
to the voting of such Voting Securities;
(iv) seek election to, seek to place a representative on, or
seek the removal of any member of, the Board;
(v) engage in any "solicitation" (within the meaning of Rule
14a-1 under the Exchange Act) of proxies or consents (whether or not
relating to the election or removal of directors) with respect to
CommScope, or become a "participant" in any "election contest" (within the
meaning of Rule 14a-11 under the Exchange Act) or, unless the execution by
Furukawa or its Affiliates is first approved by the Board, execute any
written consent in lieu of a meeting of the holders of any class of Voting
Securities that is solicited by or on behalf of any shareholder of
CommScope;
(vi) call or seek to have called any meeting of the
stockholders of CommScope;
(vii) initiate, propose or otherwise solicit stockholders
for the approval of any shareholder proposal (as described in Rule 14a-8
under the Exchange Act or otherwise) with respect to CommScope;
(viii) form, join or in any way participate in or assist in
the formation of a 13D Group with respect to any Voting Securities other
than a 13D Group consisting solely of Furukawa and its respective
Subsidiaries;
(ix) otherwise act, alone or in concert with others, to seek
control or influence the management, the Board or the policies of CommScope
in a manner designed or having the deliberate effect of circumventing the
restrictions otherwise imposed under this Section 3.1(a);
(x) disclose or publicly announce any intention, plan or
arrangement inconsistent with the foregoing; or
(xi) advise, assist or encourage or finance any other
persons in connection with any of the foregoing types of activities.
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(b) Notwithstanding the foregoing, the provisions of paragraph
(a) of this Section 3.1 shall cease to apply if: (i) CommScope enters into
a definitive agreement contemplating a Change in Control Transaction or
consummates a Change in Control Transaction; (ii) the Board publicly
announces its intention to solicit or publicly solicits any proposal or
publicly approves, accepts, authorizes or recommends to stockholders of
CommScope their approval of or the conveyance of shares pursuant to a
Change in Control Transaction; or (iii) in connection with a bona fide
tender or exchange offer made by any Person or 13D Group, other than a 13D
Group consisting solely of Furukawa and its respective Subsidiaries, the
Board determines or resolves to, or announces its intention to, or is
ordered or directed by any Governmental Entity to, redeem or modify (to
render inapplicable thereto) the Rights or the Amended Rights Agreement (or
a substantially similar agreement) or the Rights or the Amended Rights
Agreement (or a substantially similar agreement) does not, for any other
reason, apply to such tender or exchange offer or (iv) Furukawa and
Furukawa's Affiliates Beneficially Own in the aggregate less than 2.5% of
the outstanding Common Stock; PROVIDED, HOWEVER that if Furukawa and
Furukawa's Affiliates at any time during the Standstill Period Beneficially
Own in the aggregate 2.5% or more of the outstanding Common Stock, the
provision of paragraph (a) of this Section 3.1 will apply for the balance
of the Standstill Period or, if earlier, until such time that Furukawa and
Furukawa's Affiliates again Beneficially Own in the aggregate less than
2.5% of the outstanding Common Stock.
(c) Furukawa agrees that from the date hereof until the earliest
of: (i) March 16, 2006; (ii) the date on which CommScope delivers written
notice of exercise of the OFS BrightWave Put pursuant to Section 5.6 of the
MOU; (iii) the date on which CommScope enters into a definitive agreement
contemplating a Change in Control Transaction or consummates a Change in
Control Transaction or (iv) in connection with a bona fide tender or
exchange offer made by any Person or 13D Group, other than a 13D Group
consisting solely of Furukawa and its respective Subsidiaries, the Board
determines or resolves to, or announces its intention to, or is ordered or
directed by any Governmental Entity to, redeem or modify (to render
inapplicable thereto) the Rights or the Amended Rights Agreement (or a
substantially similar agreement) or the Rights or the Amended Rights
Agreement (or a substantially similar agreement) does not, for any other
reason, apply to such tender or exchange offer (such period from the date
thereof to the earliest of the events described in clauses (i)-(iv) being
referred to as the "Holding Period"), Furukawa shall not, and Furukawa
shall cause Furukawa's Affiliates not to, Sell (or enter into any agreement
or arrangement to Sell) any Shares to any Person other than the Company
without the prior written consent of the Board except Sales (A) to
Subsidiaries of Furukawa or (B) pursuant to a Change in Control
Transaction, tender offer or exchange offer approved by the Board. At any
time, after the end of the Holding Period, Furukawa or its Affiliates may
Sell all or any part of the Shares Beneficially Owned by it, subject to
compliance with applicable federal and state securities laws.
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(d) Notwithstanding the foregoing, if CommScope or its
Subsidiaries effect a Direct Transfer (as defined in the OFS BrightWave,
LLC Agreement) of all or any part of its Membership Interests (as defined
in the OFS BrightWave, LLC Agreement) then, on or after the date such
Direct Transfer is completed, Furukawa or its Affiliates shall have the
right, but not the obligation, to Sell, subject to compliance with
applicable federal and state securities laws, all or any part of the Shares
Beneficially Owned by it to any Person upon ten calendar days written
notice to CommScope of such Sale.
Section 4.1 VOTING. Furukawa agrees that from the date hereof
until the earlier of (i) the date that the provisions of Section 3.1(a) of
this Agreement cease to apply to Furukawa and its Affiliates pursuant to
Section 3.1(b) of this Agreement and (ii) the date on which Furukawa and
Furukawa's Affiliates Beneficially Own in the aggregate less than 5% of the
outstanding Common Stock, at any annual special or any other meeting of
stockholders of CommScope, however called or in respect of which action may
be taken by written consent, Furukawa shall, and Furukawa shall cause each
of Furukawa's Affiliates that Beneficially Owns Shares to: (i) appear at
such meeting or otherwise cause the Shares Beneficially Owned by them to be
counted as present thereat for purposes of establishing a quorum, and (ii)
vote in person or by proxy, all such Shares Beneficially Owned by Furukawa
and Furukawa's Affiliates either, at Furukawa's discretion, (A) in favor of
the approval and adoption of any matter approved or recommended by the
Board and any action required in furtherance thereof and against any matter
not approved or recommended by the Board or (B) in the same proportion as
the votes cast by or on behalf of the holders CommScope's outstanding
Common Stock other than Furukawa and Furukawa's Affiliates; PROVIDED,
HOWEVER that if Furukawa and Furukawa's Affiliates at any time during the
Standstill Period Beneficially Own in the aggregate 5% or more of the
outstanding Common Stock, the provisions of this Section 4.1 will apply for
the balance of the Standstill Period or, if earlier, until such time that
Furukawa and Furukawa's Affiliates again Beneficially Own in the aggregate
less than 5% of the outstanding Common Stock.
Section 5.1. COMMON STOCK PUT RIGHT.
(a) If and only if CommScope delivers written notice of exercise
of the OFS BrightWave Put pursuant to Section 5.6 of the MOU, Furukawa and
Furukawa's Affiliates will have the one-time right, but not the obligation
(the "COMMON STOCK PUT RIGHT") to require, by not less than 40 days written
notice, CommScope to purchase all of the Shares Beneficially Owned by them
for an aggregate price of $45,788,262 (the "COMMON STOCK PUT AMOUNT");
PROVIDED, HOWEVER that if Furukawa or Furukawa's Affiliates Sell any Shares
prior to the exercise of the Common Stock Put Right, the Common Stock Put
Amount shall be reduced by multiplying the Common Stock Put Amount in
effect immediately prior to such Sale by a fraction the numerator of which
is
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the number of Shares Beneficially Owned by Furukawa and Furukawa's
Affiliates immediately after such Sale and the denominator of which is the
number of Shares Beneficially Owned by Furukawa and Furukawa's Affiliates
immediately prior to such Sale.
(b) If Furukawa exercises the Common Stock Put Right, the closing
of the OFS BrightWave Put and the Common Stock Put Right shall occur
simultaneously and CommScope shall pay Furukawa the Common Stock Put Amount
simultaneously on the date that Furukawa pays CommScope the Exercise Price
(as defined in the MOU) by wire transfer of immediately available federal
funds to an account designated by Furukawa no later than five days prior to
the date of such payment. Amounts to be paid by CommScope to Furukawa
pursuant to Section 5.1 of this Agreement shall be netted against amounts
to be paid by Furukawa to CommScope pursuant to Section 5.6 of the MOU and
the net amount due will be paid in cash.
Section 6.1. CALL RIGHT.
(a) CommScope, at any time from the date hereof, shall have the
right, but not the obligation (the "CALL RIGHT") to purchase all, but not
less than all, of the Shares Beneficially Owned by Furukawa and Furukawa's
Affiliates (other than Shares which Furukawa and Furukawa's Affiliates have
agreed to Sell to any Person (other than an Affiliate of Furukawa) pursuant
to a definitive agreement entered into in accordance with the terms hereof
and of which CommScope has received at least two business days written
notice of such definitive agreement (the "DEEMED SOLD SHARES")) for an
aggregate price of $45,788,262 (the "CALL PRICE"), subject to adjustment as
provided below, by not less than ten and not more than twenty calendar days
written notice (the "CALL NOTICE DATE"); PROVIDED, HOWEVER that if on the
Call Notice Date, the Fair Market Value is greater than $59,524,741, (the
"COLLAR PRICE"), subject to adjustment as provided below, then the
aggregate purchase price for the called Shares will be equal to 90% of the
Fair Market Value (the "MARKET PRICE"). Furukawa shall not, and shall cause
its Affiliates not to, Sell or enter into any agreement or arrangement to
Sell any Shares to any Person other than the Company from and after the
Call Notice Date. If Furukawa or Furukawa's Affiliates Sell any Shares
prior to the Call Notice Date, then the Call Price and the Collar Price
shall be reduced by multiplying the Call Price and the Collar Price in
effect immediately prior to such Sale by a fraction, the numerator of which
is the number of Shares Beneficially Owned by Furukawa and Furukawa's
Affiliates immediately after such Sale and the denominator of which is the
number of Shares Beneficially Owned by Furukawa and Furukawa's Affiliates
immediately prior to such Sale, it being understood and agreed that Deemed
Sold Shares shall be treated as Sold for purposes of any adjustment to the
Call Price and Collar Price.
(b) Within ten days of the Call Date, Furukawa and Furukawa's
Affiliates will deliver the Shares Beneficially Owned by them (other than
the Deemed Sold Shares) to CommScope and CommScope shall pay Furukawa or
its designees the Call Price, or if applicable the Market Price, by wire
transfer of immediately available federal funds to an account specified by
Furukawa no later than two days prior to the date of such payment.
(c) Notwithstanding the foregoing, at any time after the
provisions of Section 3.1(c) of this Agreement cease to apply to Furukawa
and its Affiliates, if Furukawa and/or its Affiliates in a single
transaction purchase shares of Common Stock equal to 1% or more of the then
outstanding Common Stock ("Furukawa Purchase Transaction"), then CommScope
shall not be entitled to exercise the Call Right if CommScope's exercise of
the Call Right would require the disgorgement of profit by Furukawa or its
Affiliates pursuant to Section 16 of the Exchange Act, it being understood
and agreed that CommScope shall only be required to postpone the exercise
of the Call Right with respect to one Furukawa Purchase Transaction.
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Section 7.1. SPECIFIC PERFORMANCE; INJUNCTION; PAYMENT OF COSTS.
(a) The parties agree that it is impossible to determine the
monetary damages which would accrue to CommScope or Furukawa by reason of
the failure of any party hereto to perform any of its obligations under
this Agreement requiring the performance of an act other than the payment
of money only. Therefore, if any party to this Agreement shall institute an
action or proceeding to enforce the provisions of this Agreement against
any other party to this Agreement not performing such obligations, any
tribunal hearing such cause shall have the power to render an award
directing one or more parties hereto to specifically perform its
obligations hereunder in accordance with the terms and conditions of this
Agreement.
(b) In the event of a breach or threatened breach by any party of
any of the provisions of this Agreement, the other party to this Agreement,
shall be entitled to seek an injunction restraining such breaching party
from any such breach. The availability of these remedies shall not prohibit
any party from pursuing any other remedies for such breach or threatened
breach, including the recovery of damages from the breaching party.
Section 8.1. [Intentionally Omitted].
Section 9.1 FURTHER ASSURANCES. At any time or from time to time
after the date hereof, the parties agree to cooperate with each other, and
at the request of any other party, to execute and deliver any further
instruments or documents and to take all such further action as the other
party may reasonably request in order to evidence or effectuate the
consummation of the transactions contemplated hereby and to otherwise carry
out the intent of the parties hereunder.
Section 10.1. LEGENDS. Each certificate representing Shares shall
bear a legend containing the following words:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY STATE SECURITIES LAWS.
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THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND
MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF
EXCEPT IN COMPLIANCE WITH THE SECURITIES ACT OF 1933,
AS AMENDED, AND ALL APPLICABLE STATE SECURITIES LAWS.
IN ADDITION, THE SECURITIES REPRESENTED BY THIS
CERTIFICATE AND THE VOTING AND TRANSFER OF SUCH
SECURITIES ARE SUBJECT TO THE PROVISIONS OF A
STOCKHOLDERS AGREEMENT, DATED AS OF OCTOBER 9, 2002, BY
AND BETWEEN COMMSCOPE, INC., AND THE FURUKAWA ELECTRIC
CO., LTD. A COPY OF WHICH IS ON FILE IN THE OFFICE OF
COMMSCOPE, INC. AND AVAILABLE WITHOUT CHARGE.
The requirement that the first paragraph of the above legends be
placed upon certificates evidencing any such Shares shall cease and
terminate upon the earlier of the following events: (i) when such Shares
are transferred in a public offering under the Securities Act; or (ii) when
such Shares are Sold to a Person (other than a Subsidiary of Furukawa) in
any other transaction permitted by this Agreement if Furukawa delivers to
CommScope an opinion of its counsel, which counsel and opinion shall be
reasonably satisfactory to CommScope to the effect that such legend is no
longer necessary in order to protect CommScope against a violation by it of
federal and state securities laws and "blue sky" laws upon any Sale or
other disposition of such Shares without registration thereunder. The
requirement that the second paragraph of the legends above be placed upon
certificates evidencing any such Shares shall cease and terminate upon the
earlier of the following events: (i) when such Shares are Sold to any
Person in any Sale permitted by this Agreement (other then a Sale by
Furukawa to a Subsidiary of Furukawa) or (ii) the provisions of Sections
3.1 and 4.1 shall no longer be applicable to such Shares. It being
understood and agreed that such legend will again be placed upon
certificates evidencing Shares if Sections 3.1 or Section 4.1 become
applicable thereafter by their terms and Furukawa shall, and shall cause
its Subsidiaries to, cooperate in placing such legend upon certificates
evidencing Shares in that event. Upon the occurrence of any event requiring
the removal of a legend hereunder, CommScope, upon the surrender of
certificates containing such legend, shall, at its own expense, deliver to
the holder of any such Shares as to which the requirement for such legend
shall have terminated, one or more new certificates evidencing such Shares
not bearing such legend.
Section 11.1 NOTICE. Any notice, consent, waiver or demand
pursuant to or in connection with this Agreement must be in writing and
will be deemed to be delivered
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when personally delivered or when actually received by facsimile
transmission, overnight courier of national reputation or United States
mail, at the address or facsimile number stated below (or at such other
address or facsimile number as such party may designate by written notice
to all other parties), with copies sent to the persons indicated:
(a) If to CommScope, to:
CommScope, Inc.
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 Furukawa, 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 11.2 ENTIRE AGREEMENT. This Agreement constitutes the
entire agreement among the parties hereto with respect to the subject
matters hereof and supercedes all prior understandings or agreements, oral
or written, among the parties hereto.
Section 11.3 AMENDMENTS AND WAIVERS. This Agreement may only be
amended, modified, supplemented or a provision hereof waived, by a written
instrument executed by the party against whom such change, waiver or
amendment is sought to be enforced.
Section 11.4 ASSIGNMENT. This Agreement will apply to, inure to
the benefit of, and be binding upon and enforceable against the parties to
this Agreement and their respective legal representatives, successors and
permitted assigns. No party to this Agreement may assign this Agreement
without the prior written consent of all of the other parties hereto.
Section 11.5 GOVERNING LAW; CONSENT TO JURISDICTION. This
Agreement shall be construed and enforced in accordance with, and the
rights and obligations of the parties hereto shall be governed by, the laws
of the State of New York, without giving effect to the conflicts of law
principles thereof. Each of the parties hereto hereby irrevocably and
unconditionally consents to submit to the exclusive jurisdiction of the
United States District Court for the Southern District of New York for any
action or proceeding arising out of or relating to this Agreement and the
transactions contemplated hereby (and agrees not to commence any action or
proceeding relating thereto except in such courts), and further agrees that
service of any process, summons, notice or document by United States
registered mail to its respective address set forth in Section 11.1 hereof
shall be effective service of process for any action or proceeding brought
against it in any such court. Each of the parties hereto hereby irrevocably
and unconditionally waives any objection to the laying of venue of any
action or proceeding arising out of this Agreement or the transactions
contemplated hereby in the United States District Court for the Southern
District of New York, and hereby further irrevocably and unconditionally
waives and agrees not to plead or claim in any such court that any such
action or proceeding brought in any such court has been brought in an
inconvenient forum.
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Section 11.6 WAIVER OF JURY TRIAL. Each of the parties hereto
hereby waives to the fullest extent permitted by applicable law, any right
it may have to a trial by jury in respect of any litigation directly or
indirectly arising out of, under or in connection with this Agreement. Each
of the parties hereto (a) certifies that no representative of any other
party has represented, expressly or otherwise, that such other party would
not, in the event of litigation, seek to enforce the foregoing waiver and
(b) acknowledges that it and the other parties hereto have been induced to
enter into this Agreement by, among other things, the mutual waivers and
certifications in this Section 11.6.
Section 11.7 HEADINGS. The descriptive headings of the several
sections and paragraphs of this Agreement are inserted for reference only
and shall not control or otherwise affect the meaning hereof.
Section 11.8 COUNTERPARTS. This Agreement may be executed in any
number of separate counterparts, each of which will be deemed to be an
original, but which together will constitute one and the same instrument.
Section 11.9 CONTINUING EFFECT OF MOU. This Agreement will not
affect the rights and obligations of CommScope and Furukawa under the MOU,
which shall remain in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
COMMSCOPE, INC.
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Chairman and Chief Executive
Officer
THE FURUKAWA ELECTRIC CO., LTD.
By: /s/ Xxxxx Xxxx
--------------------------------
Name: Xxxxx Xxxx
Title: Managing Director
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