Exhibit 4.2


 


EXECUTION COPY


 


REGISTRATION RIGHTS AGREEMENT


 


 


between


 


 


COMMSCOPE, INC.


 


 


as Issuer,


 


 


and


 


 


WACHOVIA CAPITAL MARKETS, LLC


 


and


 


MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED


 


as representatives of the Initial Purchasers


 


 


Dated as of March 24, 2004


 

















 


REGISTRATION RIGHTS AGREEMENT dated as of March 24, 2004 between
CommScope, Inc., a Delaware corporation (the “Company”) and Wachovia Capital Markets, LLC and Merrill Lynch,
Pierce, Fenner & Smith Incorporated, as joint book-running managers and as
representatives for the several initial purchasers (the “Initial Purchasers”) named in Schedule I
to the Purchase Agreement dated March 18, 2004 (the “Purchase
Agreement”), among the Company and the Initial Purchasers.  In order to induce the Initial Purchasers to
enter into the Purchase Agreement, the Company has agreed to provide the
registration rights set forth in this Agreement.


 


The Company agrees with the Initial Purchasers, (i) for their benefit
as Initial Purchasers and (ii) for the benefit of the beneficial owners
(including the Initial Purchasers) from time to time of the Debentures (as
defined herein) and the beneficial owners from time to time of the Underlying
Common Stock (as defined herein) issued upon conversion of the Debentures (each
of the foregoing a “Holder”
and together the “Holders”),
as follows:


 


Section 1. 
Definitions.  Capitalized
terms used herein without definition shall have their respective meanings set
forth in the Purchase Agreement.  As
used in this Agreement, the following terms shall have the following meanings:


 


“Affiliate” means
with respect to any specified person, an “affiliate,” as defined in Rule 144,
of such person.


 


“Amendment Effectiveness
Deadline Date” has the meaning set forth in Section 2(d)
hereof.


 


“Business Day”
has the meaning set forth in the Indenture.


 


“Common Stock”
means the shares of common stock, $0.01 par value per share, of the Company
(together with the rights evidenced by such common stock to the extent provided
in the Rights Agreement dated as of June 30, 1997 between the Company and
ChaseMellon Shareholder Services, L.L.C., as amended as of the date hereof) and
any other securities as may constitute Common Stock for purposes of the
Indenture.


 


“Conversion Price”
has the meaning assigned such term in the Indenture.


 


“Damages Accrual Period”
has the meaning set forth in Section 2(e) hereof.


 


“Damages Payment Date”
means each March 15 and
September 15.


 


“Debentures”
means the 1.00% Convertible
Senior Subordinated Debentures Due 2024 of the Company to be purchased pursuant
to the Purchase Agreement.


 

















 


“Deferral Notice”
has the meaning set forth in Section 3(h) hereof.


 


“Deferral Period”
has the meaning set forth in Section 3(h) hereof.


 


“Effectiveness Deadline Date”
has the meaning set forth in Section 2(a) hereof.


 


“Effectiveness Period”
means the period commencing on the date hereof and ending on the date that all
Registrable Securities have ceased to be Registrable Securities.


 


“Event” has the
meaning set forth in Section 2(e) hereof.


 


“Exchange Act”
means the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the SEC promulgated thereunder.


 


“Filing Deadline Date”
has the meaning set forth in Section 2(a) hereof.


 


“Holder” has the
meaning set forth in the second paragraph of this Agreement.


 


“Indenture” means
the Indenture, dated as of March 24, 2004, between the Company and
Wachovia Bank, National Association, as trustee, pursuant to which the
Debentures are being issued.


 


“Initial Purchasers”
has the meaning set forth in the preamble hereof.


 


“Initial Shelf Registration
Statement” has the meaning set forth in Section 2(a) hereof.


 


“Issue Date”
means March 24, 2004.


 


“Liquidated Damages Amount”
has the meaning set forth in Section 2(e) hereof.


 


“Material Event”
has the meaning set forth in Section 3(h) hereof.


 


“Notice and Questionnaire”
means the Selling Securityholder Notice and Questionnaire substantially in the
form of Annex A to the Offering Memorandum of the Company dated
March 18, 2004 relating to
the Debentures.


 


“Notice Holder”
means, on any date, any Holder that has delivered a Notice and Questionnaire to
the Company on or prior to such date and holds Registrable Securities as of
such date.


 


“Purchase Agreement”
has the meaning set forth in the preamble hereof.


 


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“Prospectus”
means the prospectus included in any 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 promulgated under the Securities Act), as amended or
supplemented by any amendment or prospectus supplement, including
post-effective amendments, and all materials incorporated by reference or
explicitly deemed to be incorporated by reference in such Prospectus.


 


“Record Holder”
means with respect to any Damages Payment Date relating to any Debentures as to
which any Liquidated Damages Amount has accrued, the registered holder of such
Debenture on the March 1
immediately preceding a Damages Payment Date occurring on a March 15, and on the September 1 immediately preceding a Damages Payment Date
occurring on a September 15.


 


“Registrable Securities”
means the Debentures until such Debentures have been converted into or
exchanged for the Underlying Common Stock and, at all times subsequent to any
such conversion or exchange, the Underlying Common Stock until, in the case of
any such security, (A) the earliest of (i) its sale pursuant to Rule 144 under
the Securities Act or its effective registration under the Securities 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) under the Securities Act or any successor provision or (iii) the date on
which all such Registrable Securities cease to be outstanding, and (B) as a
result of the event or circumstance described in any of the foregoing clauses
(i) or (ii), the legend with respect to transfer restrictions required under
the Indenture is removed or removable in accordance with the terms of the
Indenture or such legend, as the case may be.


 


“Registration Statement”
means any registration statement of the Company that covers any of the Registrable
Securities pursuant to the provisions of this Agreement, including the
Prospectus, amendments and supplements to such registration statement,
including post-effective amendments, and all exhibits and all materials
incorporated by reference or explicitly deemed to be incorporated by reference
in such registration statement.


 


“Restricted Securities”
means “Restricted Securities” as defined in Rule 144.


 


“Rule 144” means
Rule 144 under the Securities Act, as such Rule may be amended from time to
time, or any similar rule or regulation hereafter adopted by the SEC.


 


“Rule 144A” means
Rule 144A under the Securities Act, as such Rule may be amended from time to
time, or any similar rule or regulation hereafter adopted by the SEC.


 


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“SEC” means the
Securities and Exchange Commission.


 


“Securities Act”
means the Securities Act of 1933, as amended, and the rules and regulations
promulgated by the SEC thereunder.


 


“Shelf Registration
Statement” has the meaning set forth in Section 2(a) hereof.


 


“Special Counsel”
means Davis Polk & Wardwell or one such other successor counsel as shall be
specified by the Holders of a majority of the Registrable Securities, but which
may, with the written consent of the Initial Purchasers (which shall not be
unreasonably withheld), be another nationally recognized law firm experienced
in securities law matters designated by the Company, the reasonable fees and
expenses of which will be paid by the Company pursuant to Section 5 hereof.  For purposes of determining the holders of a
majority of the Registrable Securities in this definition, Holders of
Debentures shall be deemed to be the Holders of the number of shares of
Underlying Common Stock into which such Debentures are or would be convertible
as of the date the consent is requested.


 


“Subsequent Shelf
Registration Statement” has the meaning set forth in
Section 2(b) hereof.


 


“TIA” means the
Trust Indenture Act of 1939, as amended.


 


“Trustee” means Wachovia Bank, National Association,
the Trustee under the Indenture.


 


“Underlying Common Stock”
means the Common Stock into which the Debentures are convertible or issued upon
any such conversion.


 


Section 2.  Shelf Registration. 
(a) The Company shall prepare, or cause to be prepared, and file, or
cause to be filed, with the SEC, as soon as practicable but in any event by the
date that is one hundred and twenty (120) days after the Issue Date (the “Filing Deadline Date”), a
Registration Statement for an offering to be made on a delayed or continuous
basis pursuant to Rule 415 of the Securities Act (a “Shelf Registration Statement”) registering the resale from
time to time by Holders thereof of all of the Registrable Securities (the “Initial Shelf Registration Statement”).  The Initial Shelf Registration Statement
shall be on Form S-3 or another appropriate form permitting registration of
such Registrable Securities for resale by such Holders in accordance with the
methods of distribution elected by the Holders and set forth in the Initial
Shelf Registration Statement.  The
Company shall use its reasonable best efforts to cause the Initial Shelf
Registration Statement to be declared effective under the Securities Act as
promptly as is practicable but in any event by the date (the “Effectiveness Deadline Date”) that
is two hundred and ten (210) days after the Issue Date, and to keep the Initial
Shelf Registration Statement (or any Subsequent Shelf


 


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Registration Statement) continuously effective under the Securities Act
until the expiration of the Effectiveness Period.  At the time the Initial Shelf Registration Statement is declared
effective, each Holder that became a Notice Holder on or prior to the date ten
(10) Business Days prior to such time of effectiveness shall be named as a
selling securityholder in the Initial Shelf Registration Statement and the
related Prospectus in such a manner as to permit such Holder to deliver such
Prospectus to purchasers of Registrable Securities in accordance with
applicable law.  None of the Company’s
security holders (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)                                 If the Initial Shelf
Registration Statement or any Subsequent Shelf Registration Statement ceases to
be effective for any reason at any time during the Effectiveness Period (other
than because all Registrable Securities registered thereunder shall have been
resold pursuant thereto or shall have otherwise ceased to be Registrable
Securities), the Company shall use its reasonable best efforts to obtain the
prompt withdrawal of any order suspending the effectiveness thereof, and in any
event shall within thirty (30) days of such cessation of effectiveness amend
the Shelf Registration Statement in a manner reasonably expected to obtain the
withdrawal of the order suspending the effectiveness thereof, or file an
additional Shelf Registration Statement covering all of the securities that as
of the date of such filing are Registrable Securities (a “Subsequent Shelf Registration Statement”).  If a Subsequent Shelf Registration Statement
is filed, the Company shall use its reasonable best efforts to cause the
Subsequent Shelf Registration Statement to become effective as promptly as is
practicable after such filing and to keep such Registration Statement
continuously effective until the end of the Effectiveness Period.


 


(c)                                  The Company shall
supplement and amend the Shelf Registration Statement if required by the rules,
regulations or instructions applicable to the registration form used by the
Company for such Shelf Registration Statement, if required by the Securities
Act or as necessary to name a Notice Holder as a selling securityholder
pursuant to Section (d) below.


 


(d)                                 Each Holder agrees
that if such Holder wishes to sell Registrable Securities pursuant to a Shelf
Registration Statement and related Prospectus, it will do so only in accordance
with this Section 2(d) and Section 3(h) of this Agreement.  Following the date that the Initial Shelf
Registration Statement is declared effective, each Holder that is not a Notice
Holder 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 ten (10) Business Days prior to any intended
distribution of Registrable Securities under the Shelf Registration
Statement.  From and after the date the
Initial Shelf Registration Statement is declared effective, the Company shall,
as promptly as practicable after the date a Notice and Questionnaire is
delivered pursuant to Section 8(d), and in any event upon the later of (x)
ten (10) Business Days after


 


5

















 


such date or (y) ten (10) Business Days after the expiration of any
Deferral Period in effect when the Notice and Questionnaire is delivered:


 


(i)                                     if required by
applicable law, file with the SEC 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
(or, if required by law, file a new shelf registration statement) 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 applicable law and, if the
Company shall file a post-effective amendment to the Shelf Registration
Statement, use its reasonable best efforts to cause such post-effective
amendment to be declared effective under the Securities Act as promptly as is
practicable, but in any event by the date (the “Amendment Effectiveness Deadline Date”) that is forty-five
(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(d)(i); and


 


(iii)                               notify such Holder as
promptly as practicable after the effectiveness under the Securities Act of any
post-effective amendment filed pursuant to Section 2(d)(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 3(h) and provided  further,  that the Company shall not
be required to file more than one supplement or post-effective amendment to the
Shelf Registration Statement in any sixty (60) day period, and no more than
four such supplements or post-effective amendments in any three hundred
sixty-five (365) day period, in order to add any Holders to such Shelf
Registration Statement.  Notwithstanding
anything contained herein to the contrary, (i) the Company shall be under no
obligation to name any Holder that is not a Notice Holder as a selling
securityholder in any Registration Statement or related Prospectus and (ii) the
Amendment Effectiveness Deadline Date shall be extended by up to ten (10)
Business Days from the expiration of a Deferral Period (and the Company shall
incur no obligation to pay Liquidated Damages during such extension) if such
Deferral Period shall be in effect on the Amendment Effectiveness Deadline
Date.


 


(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, other than as permitted hereunder,


 


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(i)                                     the Initial Shelf
Registration Statement has not been filed on or prior to the Filing Deadline
Date,


 


(ii)                                  the Initial Shelf
Registration Statement has not been declared effective under the Securities Act
on or prior to the Effectiveness Deadline Date,


 


(iii)                               the Company has failed
to perform its obligations set forth in Section 2(d)(i) within the time
period required therein,


 


(iv)                              any post-effective
amendment to a Shelf Registration Statement filed pursuant to
Section 2(d)(i) has not become effective under the Securities Act on or
prior to the Amendment Effectiveness Deadline Date,


 


(v)                                 the aggregate duration
of Deferral Periods in any period exceeds the number of days permitted in
respect of such period pursuant to Section 3(h) hereof, or


 


(vi)                              the number of Deferral
Periods in any period exceeds the number permitted in respect of such period
pursuant to Section 3(h) hereof.


 


Each event described in any of the foregoing clauses (i) through (vi)
is individually referred to herein as an “Event.” For purposes of this Agreement, each Event set forth
above shall begin and end on the dates set forth in the table set forth below:


 


	
  Type of

  Event

  by Clause

  	
   

  	
  Beginning

  Date

  	
   

  	
  Ending

  Date

  
	
  (i)

  	
   

  	
  Filing Deadline Date

  	
   

  	
  the date the Initial Shelf Registration Statement is filed

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (ii)

  	
   

  	
  Effectiveness Deadline Date

  	
   

  	
  the date the Initial Shelf Registration Statement becomes effective
  under the Securities Act

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (iii)

  	
   

  	
  the date by which the Company is required to perform its obligations
  under Section 2(d)(i)

  	
   

  	
  the date the Company performs its obligations set forth in
  Section 2(d)(i)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (iv)

  	
   

  	
  the Amendment Effectiveness Deadline Date

  	
   

  	
  the date the applicable post-effective amendment to a Shelf
  Registration Statement becomes

  



 


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  effective under the Securities Act

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (v)

  	
   

  	
  the date on which the aggregate duration of Deferral Periods in any
  period exceeds the number of days permitted by Section 3(h)

  	
   

  	
  termination of the Deferral Period that caused the limit on the
  aggregate duration of Deferral Periods to be exceeded

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (vi)

  	
   

  	
  the date of commencement of a Deferral Period that causes the number
  of Deferral Periods to exceed the number permitted by Section 3(h)

  	
   

  	
  termination of the Deferral Period that caused the number of Deferral
  Periods to exceed the number permitted by Section 3(h)

  



 


Commencing on (and including) any date that an Event has begun 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 shall pay, as liquidated damages and
not as a penalty, to Record Holders of Debentures an amount (the “Liquidated Damages Amount”)
accruing, for each day in the Damages Accrual Period, in respect of any
Debenture, at a rate equal to (i) one-quarter of one percent (25 basis points)
per annum of the outstanding principal amount of Debentures constituting
Registrable Securities held by such Holder for the period up to and including
the 90th day during which such Event has occurred and is continuing and (ii)
one-half of one percent (50 basis points) per annum of the outstanding
principal amount of Debentures constituting Registrable Securities held by such
Holder for the period including and subsequent to the 91st day during which
such Event has occurred and is continuing, it being understood that all
calculations pursuant to this sentence shall be carried out to five decimal
places; provided that (i) no
Liquidated Damages Amount shall accrue in the case of a Damages Accrual Period
that is in effect solely as a result of an Event relating to any failure to
file or have effective a Registration Statement with respect to the Underlying
Common Stock and (ii) 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) or (iv) of
the preceding paragraph, such Liquidated Damages Amount shall be paid only to
the Holders (as set forth in the succeeding paragraph) that have delivered
Notices and Questionnaires that caused the Company to incur the obligations set
forth in Section 2(d) the non-performance of which is the basis of such
Event.  Notwithstanding the foregoing,
no Liquidated Damages Amount shall accrue as to any Debenture from and after the
earlier of (x) the date such Debenture is no longer a Registrable Security and
(y) the


 


8

















 


expiration of the Effectiveness Period.  The rate of accrual of the Liquidated Damages Amount with respect
to any period shall not exceed the rate provided for in this paragraph
notwithstanding the occurrence of multiple concurrent Events.  In addition to the provisions set forth in
this Agreement, Section 17.04 of the Indenture shall apply in the event
that a Holder converts some or all of its Debentures into Underlying Common
Stock when there exists an Event with respect to the Underlying Common Stock.


 


The Liquidated Damages Amount shall accrue from the first day of the
applicable Damages Accrual Period, and shall be payable on each Damages Payment
Date during the Damage Accrual Period (and on the Damages Payment Date next
succeeding the end of the Damages Accrual Period if the Damage Accrual Period
does not end on a Damages Payment Date) to the Record Holders of the Debentures
entitled thereto; provided that any
Liquidated Damages Amount accrued with respect to any Debenture or portion
thereof redeemed or repurchased by the Company on a redemption or repurchase
date prior to the Damages Payment Date, shall, in any such event, be paid
instead to the Holder who submitted such Debenture or portion thereof for
redemption or repurchase on the applicable redemption or repurchase date, as
the case may be, on such date; provided
further, that, in the case of an Event of the type described in
clause (iii) or (iv) of the first paragraph of this Section 2(e), such
Liquidated Damages Amount shall be paid only to the Holders entitled thereto
pursuant to such first paragraph by check mailed to the address set forth in
the Notice and Questionnaire delivered by such Holder.  The Trustee shall be entitled, on behalf of
registered holders of Debentures or Underlying Common Stock, to seek any
available remedy for the enforcement of this Agreement, including for the
payment of such Liquidated Damages Amount, if any.  Notwithstanding the foregoing, the parties agree that the
exclusive monetary remedy available to the Holders of Debentures 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 any Holder 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) to
pay any Liquidated Damages Amount that is outstanding with respect to any
Debenture at the time such Debenture 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 (notwithstanding termination of this Agreement pursuant
to Section 8(l)).


 


Section 3. 
Registration Procedures.  In
connection with the registration obligations of the Company under
Section 2 hereof, during the Effectiveness Period, the Company shall:


 


(a)                                  Prepare, or cause to
be prepared, and file, or cause to be filed, with the SEC a Registration
Statement or Registration Statements on any appropriate form under the
Securities Act available for the sale of the Registrable Securities by the
Holders thereof in accordance with the


 


9

















 


intended method or methods of distribution
thereof, and use its reasonable best efforts to cause each such Registration
Statement to become effective and remain effective as provided herein; provided that before filing any Registration
Statement or Prospectus or any amendments or supplements thereto with the SEC,
the Company agrees to furnish to the Initial Purchasers and the Special Counsel
of such offering, if any, copies of all such documents proposed to be filed at
least three (3) Business Days prior to the filing of such Registration
Statement or amendment thereto or Prospectus or supplement thereto.


 


(b)                                 Subject to
Section 3(h), prepare, or cause to be prepared, and file, or cause to be
filed, with the SEC such amendments and post-effective amendments to each
Registration Statement as may be necessary to keep such Registration Statement
continuously effective for the applicable period specified in
Section 2(a); cause the related Prospectus to be supplemented by any required
prospectus supplement, and as so supplemented to be filed pursuant to Rule 424
(or any similar provisions then in force) under the Securities Act; and use its
best efforts to comply with the provisions of the Securities Act applicable to
it with respect to the disposition of all securities covered by such
Registration Statement during the Effectiveness Period in accordance with the
intended methods of disposition by the sellers thereof set forth in such
Registration Statement as so amended or such Prospectus as so supplemented.


 


(c)                                  As promptly as
reasonably practicable give notice to the Notice Holders, the Initial
Purchasers and the Special Counsel, (i) when any Prospectus, prospectus
supplement, Registration Statement or post-effective amendment to a Registration
Statement has been filed with the SEC and, with respect to a Registration
Statement or any post-effective amendment, when the same has been declared
effective, (ii) of any request, following the effectiveness of the Initial
Shelf Registration Statement under the Securities Act, by the SEC or any other
federal or state governmental authority for amendments or supplements to any
Registration Statement or related Prospectus or for additional information,
(iii) of the issuance by the SEC or any other federal or state governmental
authority of any stop order suspending the effectiveness of any Registration
Statement or the initiation or threatening of any proceedings for that purpose,
(iv) of the receipt by the Company of any notification with respect to the
suspension of the qualification or exemption from qualification of any of the
Registrable Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, (v) of the occurrence of, but
not the nature of or details concerning, a Material Event and (vi) of the
determination by the Company that a post-effective amendment to a Registration
Statement will be filed with the SEC, which notice may, at the discretion of
the Company


 


10

















 


(or as required pursuant to
Section 3(h)), state that it constitutes a Deferral Notice, in which event
the provisions of Section 3(h) shall apply.


 


(d)                                 Use its reasonable
best efforts to obtain the withdrawal of any order suspending the effectiveness
of a Registration Statement or the lifting of any suspension of the
qualification (or exemption from qualification) of any of the Registrable
Securities for sale in any jurisdiction in which they have been qualified for
sale, in either case as promptly as reasonably practicable, and provide prompt
notice to each Notice Holder and the Initial Purchasers of the withdrawal of
any such order.


 


(e)                                  As promptly as
reasonably practicable furnish to each Notice Holder, the Special Counsel and
the Initial Purchasers, upon request and without charge, at least one (1)
conformed copy of the Registration Statement and any amendment thereto,
including exhibits and, if requested, all documents incorporated or deemed to
be incorporated therein by reference.


 


(f)                                    During the
Effectiveness Period, deliver to each Notice Holder, the Special Counsel, if
any, and the Initial Purchasers, in connection with any sale of Registrable
Securities pursuant to a Registration Statement, without charge, as many copies
of the Prospectus or Prospectuses relating to such Registrable Securities
(including each preliminary prospectus) and any amendment or supplement thereto
as such Notice Holder may reasonably request; and the Company hereby consents
(except during such periods that a Deferral Notice is outstanding and has not
been revoked) to the use of such Prospectus or each amendment or supplement
thereto by each Notice Holder in connection with any offering and sale of the
Registrable Securities covered by such Prospectus or any amendment or
supplement thereto in the manner set forth therein.


 


(g)                                 Prior to any public
offering of the Registrable Securities pursuant to a Registration Statement,
use its reasonable best efforts to register or qualify or cooperate with the
Notice Holders and the Special Counsel in connection with the registration or
qualification (or exemption from such registration or qualification) of such
Registrable Securities for offer and sale under the securities or Blue Sky laws
of such jurisdictions within the United States as any Notice Holder reasonably
requests in writing (which request may be included in the Notice and
Questionnaire); prior to any public offering of the Registrable Securities
pursuant to the Shelf Registration Statement, use its reasonable best efforts
to keep each such registration or qualification (or exemption therefrom)
effective during the Effectiveness Period in connection with such Notice
Holder’s offer and sale of Registrable Securities pursuant to such registration
or qualification (or exemption therefrom) and do any and all other acts or
things reasonably necessary or advisable to enable the disposition in such


 


11

















 


jurisdictions of such Registrable Securities
in the manner set forth in the relevant Registration Statement and the related
Prospectus; provided that the
Company will not be required to (i) qualify as a foreign corporation or as a
dealer in securities in any jurisdiction where it would not otherwise be
required to qualify but for this Agreement or (ii) take any action that would
subject it to general service of process in suits or to taxation in any such
jurisdiction where it is not then so subject.


 


(h)                                 Upon (A) the issuance
by the SEC of a stop order suspending the effectiveness of the Shelf
Registration Statement or the initiation of proceedings with respect to the
Shelf Registration Statement under Section 8(d) or 8(e) of the Securities
Act, (B) the occurrence of any event or the existence of any fact (a “Material Event”) as a result of
which any Registration Statement shall contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, or any Prospectus
shall contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or (C) the occurrence or existence of any pending corporate
development that, in the sole discretion of the Company, makes it appropriate
to suspend the availability of the Shelf Registration Statement and the related
Prospectus:


 


(i)                                     in the case of
clause (B) above, subject to the next sentence, as promptly as reasonably
practicable prepare, or cause to be prepared, and file, or cause to be filed,
if necessary pursuant to applicable law, a post-effective amendment to such
Registration Statement or a supplement to the related Prospectus or any
document incorporated therein by reference or file any other required document
that would be incorporated by reference into such Registration Statement and
Prospectus so that such Registration Statement does not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading, and
such Prospectus does not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, as thereafter delivered to the purchasers of the
Registrable Securities being sold thereunder, and, in the case of a
post-effective amendment to a Registration Statement, subject to the next
sentence, use its reasonable best efforts to cause it to be declared effective
as promptly as is reasonably practicable, and


 


(ii)                                  give notice to the
Notice Holders, and the Special Counsel, if any, that the availability of the
Shelf Registration


 


12

















 


Statement is suspended (a “Deferral Notice”) and, upon
receipt of any Deferral Notice, each Notice Holder agrees not to sell any
Registrable Securities pursuant to the Registration Statement until such Notice
Holder’s receipt of copies of the supplemented or amended Prospectus provided
for in clause (i) above, and, if so directed by the Company, such Holder shall
deliver to the Company all copies, other than permanent file copies, then in
such Holder’s possession of the Prospectus at the time of receipt of such
notice, or until it is advised in writing by the Company that the Prospectus
may be used, and has received copies of any additional or supplemental filings
that are incorporated or deemed incorporated by reference in such Prospectus.


 


The Company will use its reasonable best efforts to ensure that the use
of the Prospectus may be resumed (x) in the case of clause (A) above, as
promptly as is practicable, (y) in the case of clause (B) above, as soon as, in
the sole judgment of the Company, public disclosure of such Material Event
would not be prejudicial to or contrary to the interests of the Company or, if
necessary to avoid unreasonable burden or expense, as soon as practicable
thereafter and (z) in the case of clause (C) above, as soon as in the sole
discretion of the Company, such suspension is no longer appropriate.  The Company shall be entitled to exercise
its right under this Section 3(h) to suspend the availability of the Shelf
Registration Statement or any Prospectus without incurring or accruing any
obligation to pay liquidated damages pursuant to Section 2(e), provided
that the aggregate duration of any periods during which the availability of the
Registration Statement and any Prospectus is suspended (each, a “Deferral Period”) shall not exceed
45 days in any three month period (or 75 days in any three month period in the
event of a Material Event pursuant to which the Company has delivered a second
notice as permitted below) or 90 days in any twelve (12) month period; provided that in the case of a Material
Event relating to an acquisition or a probable acquisition or financing,
recapitalization, business combination or other similar transaction, the
Company may, without incurring any obligation to pay liquidated damages
pursuant to Section 2(e), deliver to Notice Holders a second notice to the
effect set forth above, which shall have the effect of extending the Deferral
Period by up to an additional 30 days, or such shorter period of time as is
specified in such second notice.


 


(i)                                     If requested in
writing in connection with a disposition of Registrable Securities pursuant to
a Registration Statement, make reasonably available for inspection during
normal business hours by a representative for the Notice Holders of such
Registrable Securities, any broker-dealers, attorneys and accountants retained
by such Notice Holders, and any attorneys or other agents retained by a broker-dealer
engaged by such Notice Holders, all relevant financial and other records and
pertinent


 


13

















 


corporate documents and properties of the
Company and its subsidiaries, and cause the appropriate officers, directors and
employees of the Company and its subsidiaries to make reasonably available for
inspection during normal business hours on reasonable notice all relevant
information reasonably requested by such representative for the Notice Holders,
or any such broker-dealers, attorneys or accountants in connection with such
disposition, in each case as is customary for similar “due diligence”
examinations; provided that such persons shall first agree in writing with
the Company that any non-public information shall be kept confidential by such
persons and shall be used solely for the purposes of exercising rights under
this Agreement, unless (i) disclosure of such information is required by court
or administrative order or is necessary to respond to inquiries of regulatory
authorities, (ii) disclosure of such information is required by law (including
any disclosure requirements pursuant to federal securities laws in connection
with the filing of any Registration Statement or the use of any prospectus referred
to in this Agreement), (iii) such information becomes generally available to
the public other than as a result of a disclosure or failure to safeguard by
any such person, (iv) such information becomes available to any such person
from a source other than the Company and such source is not bound by a
confidentially agreement or (v) disclosure of such information is required to
establish a “due diligence” defense under federal securities laws; and provided further that the foregoing
inspection and information gathering shall, to the greatest extent possible, be
coordinated on behalf of all the Notice Holders and the other parties entitled
thereto by Special Counsel.  Any person
legally compelled to disclose any such confidential information made available for
inspection shall provide the Company with prompt prior written notice of such
requirement so that the Company may seek a protective order or other
appropriate remedy.


 


(j)                                     Comply with all
applicable rules and regulations of the SEC and make generally available to its
securityholders earning statements (which need not be audited) satisfying the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder
(or any similar rule promulgated under the Securities Act) for a 12-month
period commencing on the first day of the first fiscal quarter of the Company
commencing after the effective date of a Registration Statement, which
statements shall be made available no later than 45 days after the end of the
12-month period or 90 days if the 12-month period coincides with the fiscal
year of the Company.


 


(k)                                  Unless any
Registrable Securities shall be in book-entry only form, the Company shall
cooperate with each Notice Holder to facilitate the timely preparation and
delivery of certificates representing Registrable Securities sold or to be sold
pursuant to a Registration Statement, which certificates shall not bear any
restrictive legends, and cause such


 


14

















 


Registrable Securities to be in such
denominations as are permitted by the Indenture and registered in such names as
such Notice Holder may request in writing at least two (2) Business Days prior
to any sale of such Registrable Securities.


 


(l)                                     Provide a CUSIP
number for all Registrable Securities covered by each Registration Statement
not later than the effective date of such Registration Statement and provide
the Trustee and the transfer agent for the Common Stock with printed
certificates for the Registrable Securities that are in a form eligible for
deposit with The Depository Trust Company.


 


(m)                               Cooperate and assist, as
reasonably requested, in any filings required to be made with the New York
Stock Exchange and the National Association of Securities Dealers, Inc., as
applicable.


 


(n)                                 Upon (i) the filing of
the Initial Shelf Registration Statement and (ii) the effectiveness of the
Initial Shelf Registration Statement, announce the same, in each case by
release to Reuters Economic Services and Bloomberg Business News.


 


Section 4. 
Holder’s Obligations.  Each
Holder agrees, by acquisition of the Registrable Securities, that no Holder
shall be entitled to sell any of such Registrable Securities pursuant to a
Registration Statement or to receive a Prospectus relating thereto, unless such
Holder has furnished the Company with an executed Notice and Questionnaire as
required pursuant to Section 2(d) hereof (including all of the information
required to be included in such Notice and Questionnaire) and the information
set forth in the next sentence.  Each
Notice Holder agrees promptly to furnish to the Company all information
required to be disclosed in order to make the information previously furnished
to the Company by such Notice Holder not misleading and any other information
regarding such Notice Holder and the distribution of such Registrable
Securities as the Company may from time to time reasonably request.  Any sale of any Registrable Securities by
any Holder shall constitute a representation and warranty by such Holder that
the information relating to such Holder and its plan of distribution is as set
forth in the Prospectus delivered by such Holder in connection with such
disposition, that such Prospectus does not as of the time of such sale contain
any untrue statement of a material fact relating to or provided by such Holder
or its plan of distribution and that such Prospectus does not as of the time of
such sale omit to state any material fact relating to or provided by such
Holder or its plan of distribution necessary to make the statements in such
Prospectus, in the light of the circumstances under which they were made, not
misleading.


 


Section 5. 
Registration Expenses.  The
Company shall bear all fees and expenses incurred in connection with the
performance by the Company of its obligations under Sections 2 and 3 of this
Agreement whether or not any Registration Statement is declared effective.  Such fees and expenses shall


 


15

















 


include, without limitation, (i) all registration and filing fees (including,
without limitation, fees and expenses (x) with respect to filings required to
be made with the New York Stock Exchange or the National Association of
Securities Dealers, Inc., as applicable and (y) of compliance with federal and
state securities or Blue Sky laws (including, without limitation, reasonable
fees and disbursements of the Special Counsel in connection with Blue Sky
qualifications of the Registrable Securities under the laws of such
jurisdictions as Notice Holders of a majority of the Registrable Securities
being sold pursuant to a Registration Statement may designate), (ii) printing
expenses (including, without limitation, expenses of printing certificates for
Registrable Securities in a form eligible for deposit with The Depository Trust
Company), (iii) duplication expenses relating to copies of any Registration
Statement or Prospectus delivered to any Holders hereunder, (iv) fees and
disbursements of counsel for the Company in connection with the Shelf
Registration Statement, (v) reasonable fees and disbursements of the Trustee
and its counsel and of the registrar and transfer agent for the Common Stock
and (vi) any Securities Act liability insurance obtained by the Company in its
sole discretion.  In addition, the
Company shall pay the internal expenses of the Company (including, without
limitation, all salaries and expenses of officers and employees performing
legal or accounting duties), the expense of any annual audit, the fees and
expenses incurred in connection with the listing by the Company of the
Registrable Securities on any securities exchange on which similar securities
of the Company are then listed and the fees and expenses of any person,
including special experts, retained by the Company.  Notwithstanding the provisions of this Section 5, each
seller of Registrable Securities shall pay all transfer taxes, selling
expenses, including any underwriting discount and commissions and the fees and
disbursements of any counsel or other advisers or experts retained by such
seller.


 


Section 6. 
Indemnification and Contribution.


 


(a)                                  Indemnification by the Company.  The Company agrees to indemnify and hold
harmless each Notice Holder, each person, if any, who controls any Notice
Holder within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, and each affiliate of any Notice Holder
within the meaning of Rule 405 under the Securities Act from and against
any and all losses, claims, damages and liabilities (including, without
limitation, any legal or other expenses reasonably incurred in connection with
defending or investigating any such action or claim) caused by any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement or any amendment thereof, any preliminary prospectus or
the Prospectus (as amended or supplemented if the Company shall have furnished
any amendments or supplements thereto), caused by any omission or alleged
omission to state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, except insofar as such losses,
claims, damages or liabilities are caused by any such untrue statement or
omission or alleged untrue statement or omission based upon information
relating to any Holder furnished to


 


16

















 


the Company in writing by such Holder expressly for use therein; provided
that the indemnification contained in this paragraph shall not inure to the
benefit of any Holder (or to the benefit of any person controlling such Holder)
on account of any such losses, claims, damages or liabilities caused by any
untrue statement or alleged untrue statement or omission or alleged omission
made in any preliminary prospectus provided in each case the Company has
performed its obligations under Section 3(f) hereof if either (A)(x) such
Holder failed to send or deliver a copy of the Prospectus, if required by law,
with or prior to the delivery of written confirmation of the sale by such
Holder to the person asserting the claim from which such losses, claims,
damages or liabilities arise and (y) the Prospectus would have corrected such
untrue statement or alleged untrue statement or such omission or alleged
omission, or (B)(x) such untrue statement or alleged untrue statement,
omission, or alleged omission is corrected in an amendment or supplement to the
Prospectus and (y) having previously been furnished by or on behalf of the
Company with copies of the Prospectus as so amended or supplemented, such
Holder thereafter fails to deliver such Prospectus as so amended or
supplemented, with or prior to the delivery of written confirmation of the sale
of a Registrable Security to the person asserting the claim from which such
losses, claims, damages or liabilities arise.


 


(b)                                 Indemnification by Holders.  Each Holder agrees severally and not jointly to
indemnify and hold harmless the Company and its directors, officers and each
person, if any, who controls the Company (within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act)
or any other Holder, to the same extent as the foregoing indemnity from the
Company to such Holder, but only with reference to information relating to such
Holder furnished to the Company in writing by such Holder expressly for use in
such Registration Statement or Prospectus or amendment or supplement
thereto.  In no event shall the
liability of any Holder hereunder be greater in amount than the dollar amount
of the proceeds received by such Holder upon the sale of the Registrable
Securities pursuant to the Registration Statement giving rise to such
indemnification obligation.


 


(c)                                  Conduct of Indemnification Proceedings.  In case any proceeding (including
any governmental investigation) shall be instituted involving any person in
respect of which indemnity may be sought pursuant to Section 6(a) or 6(b)
hereof, such person (the “indemnified
party”) shall promptly notify the person against whom such indemnity
may be sought (the “indemnifying
party”) in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the reasonable
fees and disbursements of such counsel related to such proceeding.  In any such proceeding, any indemnified
party shall have the right to retain its own counsel, but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless (i)
the indemnifying party and the indemnified party shall have mutually agreed to
the retention of such


 


17

















 


counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them.  It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees
and expenses shall be reimbursed as they are incurred.  Such firm shall be designated in writing by,
in the case of parties indemnified pursuant to Section 6(a), the Holders
of a majority (with Holders of Debentures deemed to be the Holders, for
purposes of determining such majority, of the number of shares of Underlying
Common Stock into which such Debentures are or would be convertible as of the
date on which such designation is made) of the Registrable Securities covered
by the Registration Statement that are indemnified parties pursuant to
Section 6(a) and, in the case of parties indemnified pursuant to
Section 6(b), the Company.  The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by
reason of such settlement or judgment that is indemnifiable pursuant to
Section 6(a) or 6(b), as the case may be. 
Notwithstanding the foregoing sentence, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel as contemplated by the second and third
sentences of this paragraph, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its written
consent if (i) such settlement is entered into more than 30 days after
receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement.  No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is
or could have been a party and indemnity could have been sought hereunder by
such indemnified party, unless such settlement includes an unconditional
release of such indemnified party from all liability on claims that are the
subject matter of such proceeding.


 


(d)                                 Contribution. 
To the extent that the indemnification provided for in
Section 6(a) or 6(b) is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the indemnifying party or parties on the one hand
and the indemnified party or parties on the other hand or (ii) if the
allocation provided by clause (i) above is not


 


18

















 


permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also
the relative fault of the indemnifying party or parties on the one hand and of
the indemnified party or parties on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations.  The relative benefits received by the
Company shall be deemed to be equal to the total net proceeds from the initial
placement pursuant to the Purchase Agreement (before deducting expenses) of the
Registrable Securities to which such losses, claims, damages or liabilities
relate.  The relative benefits received
by any Holder shall be deemed to be equal to the value of receiving Registrable
Securities that are registered under the Securities Act.  The relative fault of the Holders on the one
hand and the Company on the other hand shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Holders or by the Company, and the
parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. 
The Holders’ respective obligations to contribute pursuant to this
Section 6 are several in proportion to the respective number of
Registrable Securities they have sold pursuant to a Registration Statement, and
not joint.


 


The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 6(d) were determined by pro rata allocation or by any other method
of allocation that does not take into account the equitable considerations
referred to in the immediately preceding paragraph.  The amount paid or payable by an indemnified party as a result of
the losses, claims, damages or liabilities referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim.  Notwithstanding this
Section 6, no indemnifying party that is a selling Holder shall be required
to contribute any amount in excess of the amount by which the total price at
which the Registrable Securities sold by it and distributed to the public were
offered to the public exceeds the amount of any damages that such indemnifying
party 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 Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.


 


(e)                                  The remedies provided
for in this Section 6 are not exclusive and shall not limit any rights or
remedies which may otherwise be available to an indemnified party at law or in
equity, hereunder, under the Purchase Agreement or otherwise.


 


(f)                                    The indemnity and
contribution provisions contained in this Section 6 shall remain operative
and in full force and effect regardless of (i) any


 


19

















 


termination of this Agreement, (ii) any investigation made by or on
behalf of any Holder, any person controlling any Holder or any affiliate of any
Holder or by or on behalf of the Company, its officers or directors or any
person controlling the Company and (iii) the sale of any Registrable
Securities by any Holder.


 


Section 7. 
Information Requirements.  The
Company covenants that, if at any time before the end of the Effectiveness
Period the Company is not subject to the reporting requirements of the Exchange
Act, it will cooperate with any Holder and take such further reasonable action
as any Holder may reasonably request in writing (including, without limitation,
making such reasonable representations as any such Holder may reasonably
request), all to the extent required from time to time to enable such Holder to
sell Registrable Securities without registration under the Securities Act
within the limitation of the exemptions provided by Rule 144 and Rule 144A
under the Securities Act and customarily taken in connection with sales
pursuant to such exemptions.  Upon the
written request of any Holder, the Company shall deliver to such Holder a
written statement as to whether it has complied with such filing requirements,
unless such a statement has been included in the Company’s most recent report
filed pursuant to Section 13 or Section 15(d) of Exchange Act.  Notwithstanding the foregoing, nothing in
this Section 7 shall be deemed to require the Company to register any of
its securities (other than the Common Stock) under any section of the
Exchange Act.


 


Section 8.  Miscellaneous.


 


(a)                                  Remedies.  The
Company acknowledges and agrees that any failure by the Company to comply with
its obligations under Section 2 hereof may result in material irreparable
injury to the Initial Purchasers or the Holders for which there is no adequate
remedy at law, that it will not be possible to measure damages for such
injuries precisely, and that, in the event of any such failure, the Initial
Purchasers or any Holder may obtain such relief as may be required to
specifically enforce the Company’s obligations under Section 2
hereof.  The Company further agrees to
waive the defense in any action for specific performance that a remedy at law
would be adequate.


 


(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 in this
Agreement.  The Company represents and
warrants that the rights granted to the Holders 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, modified or supplemented, and
waivers or consents to departures from the provisions hereof may not be given,
unless the Company has obtained the written consent of Holders of a majority of
the then outstanding Underlying Common Stock constituting Registrable
Securities (with Holders of Debentures deemed to be the


 


20

















 


Holders, for purposes of this Section, of the number of outstanding shares
of Underlying Common Stock into which such Debentures are or would be
convertible as of the date on which such consent is requested).  Notwithstanding the foregoing, a waiver or
consent to depart from the provisions hereof with respect to a matter that
relates exclusively to the rights of Holders whose securities are being sold
pursuant to a Registration Statement and that does not directly or indirectly
affect the rights of other Holders may be given by Holders of at least a
majority of the Registrable Securities being sold by such Holders pursuant to
such Registration Statement; provided
that the provisions of this sentence may not be amended, modified or
supplemented except in accordance with the provisions of the immediately
preceding sentence.  Notwithstanding the
foregoing two sentences, this Agreement may be amended by written agreement
signed by the Company and the Initial Purchasers, without the consent of the
Holders of Registrable Securities, to cure any ambiguity or to correct or
supplement any provision contained herein that may be defective or inconsistent
with any other provision contained herein, or to make such other provisions in
regard to matters or questions arising under this Agreement that shall not
adversely affect the interests of the Holders of Registrable Securities.  Each Holder of Registrable Securities
outstanding at the time of any such amendment, modification, supplement, waiver
or consent or thereafter shall be bound by any such amendment, modification,
supplement, waiver or consent effected pursuant to this Section 8(c),
whether or not any notice, writing or marking indicating such amendment,
modification, supplement, waiver or consent appears on the Registrable
Securities or is delivered to such Holder.


 


(d)                                 Notices.  All
notices and other communications provided for or permitted hereunder shall be
made in writing by hand delivery, by telecopier, by courier guaranteeing
overnight delivery or by first-class mail, return receipt requested, and shall
be deemed given (i) when made, if made by hand delivery, (ii) upon
confirmation, if made by telecopier, (iii) one (1) Business Day after being
deposited with such courier, if made by overnight courier or (iv) on the date
indicated on the notice of receipt, if made by first-class mail, to the parties
as follows:


 


(i)             if to a Holder, at the most current
address given by such Holder to the Company in a Notice and Questionnaire or
any amendment thereto;


 


(ii)          if to the Company, to:


 


CommScope, Inc.


1100 CommScope Place S.E.


Post Office Box 339 (28603-0339)


Hickory, NC 28602


Attention: Frank B. Wyatt, II


Telecopy No.: (828) 324-2760


 


21

















 


and


 


Fried, Frank, Harris, Shriver & Jacobson LLP


One New York Plaza


New York, NY 19103-6998


Attention: Lois Herzeca


Telecopy No.: (212) 859-8587


 


(iii)       if to the Initial Purchasers, to:


 


Wachovia Capital Markets, LLC


53 Forest Avenue


Old Greenwich, CT 06870


Attention: Convertible Syndication


Telecopy No.: (203) 698-2368


 


and


 


Merrill Lynch, Pierce, Fenner & Smith Incorporated


4 World Financial Center


New York, NY 10080


Attention: Equity Capital Markets


Telecopy No.: (212) 449-6714


 


or to such other address as such person may have furnished to the other
persons identified in this Section 8(d) in writing in accordance herewith.


 


(e)                                  Approval of Holders. 
Whenever the consent or approval of Holders of a specified
percentage of Registrable Securities is required hereunder, Registrable
Securities held by the Company or its affiliates (as such term is defined in Rule
405 under the Securities Act) (other than the Initial Purchasers or subsequent
Holders if such subsequent Holders are deemed to be such affiliates solely by
reason of their holdings of such Registrable Securities) shall not be counted
in determining whether such consent or approval was given by the Holders of
such required percentage.


 


(f)                                    Successors and Assigns.  Any person who purchases any Registrable Securities
from the Initial Purchasers shall be deemed, for purposes of this Agreement, to
be an assignee of the Initial Purchasers. 
This Agreement shall inure to the benefit of and be binding upon the
successors and assigns of each of the parties and shall inure to the benefit of
and be binding upon each Holder of any Registrable Securities, provided that nothing herein shall be
deemed to permit any assignment, transfer or other disposition of Registrable
Securities in violation of the terms of the Indenture.  If any transferee of any Holder shall
acquire Registrable Securities, in any manner, whether by operation of law or
otherwise, such Registrable Securities shall be held subject to all of the
terms of this Agreement, and by taking and holding such Registrable Securities,
such person


 


22

















 


shall be conclusively deemed to have agreed to be bound by and to
perform all of the terms and provisions of this Agreement and such person shall
be entitled to receive the benefits hereof.


 


(g)                                 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 original and all of which taken together shall
constitute one and the same agreement.


 


(h)                                 Headings.  The
headings in this Agreement are for convenience of reference only and shall not
limit or otherwise affect the meaning hereof.


 


(i)                                     Governing Law. 
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.


 


(j)                                     Severability.  If any term provision, covenant or
restriction of this Agreement is held to be invalid, illegal, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect and shall
in no way be affected, impaired or invalidated thereby, and the parties hereto
shall use their best efforts to find and employ an alternative means to achieve
the same or substantially the same result as that contemplated by such term,
provision, covenant or restriction, it being intended that all of the rights
and privileges of the parties shall be enforceable to the fullest extent
permitted by law.


 


(k)                                  Entire Agreement.  This Agreement, together with the Purchase
Agreement and the Indenture, is intended by the parties as a final expression
of their agreement and is intended to be a complete and exclusive statement of
the agreement and understanding of the parties hereto in respect of the subject
matter contained herein and the registration rights granted by the Company with
respect to the Registrable Securities. 
Except as provided in the Purchase Agreement, there are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein, with respect to the registration rights granted by the Company with respect
to the Registrable Securities.  This
Agreement supersedes all prior agreements and undertakings among the parties
with respect to such registration rights. 
No party hereto shall have any rights, duties or obligations other than
those specifically set forth in this Agreement.


 


(l)                                     Termination.  This
Agreement and the obligations of the parties hereunder shall terminate upon the
end of the Effectiveness Period, except for any liabilities or obligations
under Section 4, 5 or 6 hereof and the obligations to make payments of and
provide for the Liquidated Damages Amount under Section 2(e) hereof to the
extent such amount accrues prior to the end of the Effectiveness Period, each
of which shall remain in effect in accordance with its terms.


 


23

















 


IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.


 


	
   

  	
  COMMSCOPE, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jearld L. Leonhardt

  
	
   

  	
   

  	
  Name:

  	
  Jearld L. Leonhardt

  
	
   

  	
   

  	
  Title:

  	
  Executive Vice President and

  Chief Financial Officer

  



 


[Signature Follows]


 


24

















 


Confirmed and accepted as of the date first above written:


 


	
  WACHOVIA CAPITAL MARKETS, LLC 
  

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  MERRILL LYNCH, PIERCE, FENNER & SMITH
  INCORPORATED

  	
   

  
	
   

  	
   

  
	
  Acting severally on behalf of themselves
  and the several Initial Purchasers named in Schedule I to the
  Purchase Agreement.

  	
   

  



 


	
  By:

  	
  WACHOVIA CAPITAL MARKETS, LLC

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Mary Louise Guttmann

  	
   

  
	
   

  	
  Name: Mary Louise Guttmann

  	
   

  
	
   

  	
  Title: Senior Vice President

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Geoffrey T. Blythe

  	
   

  
	
   

  	
  Name: Geoffrey T. Blythe

  	
   

  
	
   

  	
  Title: Managing Director