Exhibit
10(d)


 


EXECUTION COPY


 


WARRANT
AGREEMENT


 


Dated as of


 


November 10,
2003


 


between


 


SUPERIOR ESSEX
INC.


 


and


 


AMERICAN STOCK
TRANSFER & TRUST COMPANY


 


as the Warrant
Agent


 

















 


Table of Contents


 


	
  ARTICLE 1.
  Defined Terms

  	
   

  
	
   

  	
  SECTION 1.1.   Definitions

  	
   

  
	
   

  	
  SECTION 1.2.   Other Definitions

  	
   

  
	
   

  	
  SECTION 1.3.   Rules of
  Construction

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2.
  Warrant Certificates

  	
   

  
	
   

  	
  SECTION 2.1.   Issuance and
  Dating

  	
   

  
	
   

  	
  SECTION 2.2.   Execution and
  Countersignature

  	
   

  
	
   

  	
  SECTION 2.3.   Certificate
  Register

  	
   

  
	
   

  	
  SECTION 2.4.   Transfer and
  Exchange

  	
   

  
	
   

  	
  SECTION 2.5.   Replacement
  Certificates

  	
   

  
	
   

  	
  SECTION 2.6.   Temporary
  Certificates

  	
   

  
	
   

  	
  SECTION 2.7.   Cancellation

  	
   

  
	
   

  	
  SECTION 2.8.   Payment of Taxes

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3.
  Exercise Terms

  	
   

  
	
   

  	
  SECTION 3.1.   Exercise Price

  	
   

  
	
   

  	
  SECTION 3.2.   Exercise Periods

  	
   

  
	
   

  	
  SECTION 3.3.   Expiration

  	
   

  
	
   

  	
  SECTION 3.4.   Manner of Exercise

  	
   

  
	
   

  	
  SECTION 3.5.   Issuance of
  Warrant Shares

  	
   

  
	
   

  	
  SECTION 3.6.   Fractional Warrant
  Shares

  	
   

  
	
   

  	
  SECTION 3.7.   Reservation of
  Warrant Shares; Restrictive Legends

  	
   

  
	
   

  	
  SECTION 3.8.   Compliance with
  Law

  	
   

  
	
   

  	
  SECTION 3.9.   Payment of Taxes

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 4.
  Antidilution Provisions

  	
   

  
	
   

  	
  SECTION 4.1.   Changes in Common
  Stock

  	
   

  
	
   

  	
  SECTION 4.2.   Cash Dividends and
  Other Distributions

  	
   

  
	
   

  	
  SECTION 4.3.   Fundamental
  Change; Liquidation

  	
   

  
	
   

  	
  SECTION 4.4.   Other Adjustments

  	
   

  
	
   

  	
  SECTION 4.5.   Excluded Issuances

  	
   

  
	
   

  	
  SECTION 4.6.   Current Market
  Value

  	
   

  
	
   

  	
  SECTION 4.7.   Adjustment to
  Exercise Price

  	
   

  
	
   

  	
  SECTION 4.8.   Superseding
  Adjustment

  	
   

  
	
   

  	
  SECTION 4.9.   Minimum Adjustment

  	
   

  
	
   

  	
  SECTION 4.10.   Notice of
  Adjustment

  	
   

  
	
   

  	
  SECTION 4.11.   Notice of
  Certain Transactions

  	
   

  
	
   

  	
  SECTION 4.12.   Adjustment to
  Warrant Certificate

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5.
  Warrant Agent

  	
   

  
	
   

  	
  SECTION 5.1.   Appointment of
  Warrant Agent

  	
   

  
	
   

  	
  SECTION 5.2.   Rights and Duties
  of Warrant Agent

  	
   

  



 


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  SECTION 5.3.   Individual Rights
  of Warrant Agent

  	
   

  
	
   

  	
  SECTION 5.4.   Warrant Agent’s
  Disclaimer

  	
   

  
	
   

  	
  SECTION 5.5.   Compensation and
  Indemnity

  	
   

  
	
   

  	
  SECTION 5.6.   Successor Warrant
  Agent

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6.
  Representations, Warranties and Agreements

  	
   

  
	
   

  	
  SECTION 6.1.   Agreement of
  Warrant Holders

  	
   

  
	
   

  	
  SECTION 6.2.   Representations
  and Warranties of the Company

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 7.
  Miscellaneous

  	
   

  
	
   

  	
  SECTION 7.1.   Agreements
  Respecting Warrants; Impairment

  	
   

  
	
   

  	
  SECTION 7.2.   SEC Reports

  	
   

  
	
   

  	
  SECTION 7.3.   Persons Benefiting

  	
   

  
	
   

  	
  SECTION 7.4.   Rights of Holders

  	
   

  
	
   

  	
  SECTION 7.5.   Amendment

  	
   

  
	
   

  	
  SECTION 7.6.   Notices

  	
   

  
	
   

  	
  SECTION 7.7.   GOVERNING LAW

  	
   

  
	
   

  	
  SECTION 7.8.   Successors

  	
   

  
	
   

  	
  SECTION 7.9.   Counterparts

  	
   

  
	
   

  	
  SECTION 7.10.   Headings

  	
   

  
	
   

  	
  SECTION 7.11.   Severability

  	
   

  
	
   

  	
  SECTION 7.12.   Beneficiaries of
  this Agreement

  	
   

  
	
   

  	
  SECTION 7.13.   Termination

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBITS

  	
   

  
	
   

  	
   

  
	
  EXHIBIT A 
  —  Form of Warrant Certificate

  	
   

  
	
  EXHIBIT B  —  Form of Election to
  Purchase Warrant Shares At Exercise Price

  	
   

  



 


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WARRANT
AGREEMENT, dated as of November 10, 2003 (this “Agreement”), between SUPERIOR
ESSEX INC., a Delaware corporation (the “Company”), and American Stock Transfer
& Trust Company, a New York corporation, as Warrant Agent (in such
capacity, the “Warrant Agent”).


 


WITNESSETH:


 


WHEREAS,
pursuant to the Plan of Reorganization (as defined below), the Company has
agreed to issue warrants to purchase from the Company 868,421 shares of Common
Stock (the “Warrants”) representing in the aggregate approximately 5% of the
fully diluted Common Stock on the Plan Effective Date to certain of the holders
of Senior Subordinated Note Claims (such term, and all other capitalized terms
used herein without being otherwise defined, having the meanings referred to in
Section 1.1 below);


 


NOW,
THEREFORE, in consideration of the premises and mutual covenants contained
herein, the parties hereto hereby agree as follows:


 


ARTICLE 1.


 


DEFINED TERMS


 


SECTION 1.1.
Definitions.  All terms defined
in the Plan of Reorganization shall have such defined meanings when used herein
or in any Exhibit hereto unless otherwise defined herein or therein. As used in
this Agreement, the following terms shall have the following meanings:


 


“Affiliate”
means, as to any Person, any other Person that, directly or indirectly, is in
control of, is controlled by, or is under common control with, such
Person.  For purposes of this
definition, “control” of a Person means the power, directly or indirectly,
either to (a) vote 50% or more of the securities having ordinary voting power
for the election of directors of such Person or (b) direct or cause the
direction of the management and policies of such Person, whether by contract or
otherwise.


 


“Board” means
the Board of Directors of the Company or any committee thereof duly authorized
to act on behalf of such Board of Directors.


 


“Business Day”
means a day other than a Saturday, Sunday or other day on which commercial
banks in New York City and Atlanta, Georgia are authorized or required by law
to close.


 


“Code” means
the Internal Revenue Code of 1986, as amended.


 


“Common Stock”
means the common stock, par value $.01 per share, of the Company to be issued
on the Plan Effective Date or reserved for issuance after the Plan Effective
Date, together with any other equity securities that may be issued by the
Company in substitution therefor.


 


“Exchange Act”
means the Securities Exchange Act of 1934, as amended.


 

















 


“Expiration
Date” means May 10, 2006.


 


“Fundamental
Change” means an event in which the Company consolidates with, merges with or
into, or sells its property and assets as an entirety or substantially as an
entirety to, another Person.


 


“Holder” means
the duly registered holder of a Warrant under the terms of this Agreement.


 


“New Incentive
Equity Plan” means the Stock Incentive Plan adopted by the Company in
connection with the Plan of Reorganization, as the same may be amended,
modified, restated or supplemented from time to time.


 


“Officer”
means the Chief Executive Officer, the President, any Vice President, the Chief
Financial Officer, the Treasurer or the Controller of the Company.


 


“Person” means
any individual, corporation, partnership, joint venture, limited liability
company, association, joint-stock company, trust, unincorporated organization,
government or any agency or political subdivision thereof or any other entity.


 


“Plan
Effective Date” means the date that the Plan of Reorganization becomes
effective in accordance with Article IX thereof.


 


“Plan of
Reorganization” means the Amended Joint Plan of Reorganization for Superior
TeleCom Inc. and its Affiliates, as confirmed by an order of the United States
Bankruptcy Court for the District of Delaware, dated October 22, 2003,
including all schedules and exhibits thereto and all documents incorporated by
reference therein or contained in the documentary supplement thereto.


 


“Securities
Act” means the Securities Act of 1933, as amended.


 


“Warrant
Certificates” means the certificates evidencing the Warrants to be delivered
pursuant to this Agreement, substantially in the form of Exhibit A hereto.


 


“Warrant
Shares” means the shares of Common Stock to be issued and received, or issued
and received, as the case may be, upon exercise of the Warrants.


 


SECTION 1.2.  Other Definitions.


 


	
  “Agreement”

  	
   

  	
  Preamble

  
	
  “Certificate Register”

  	
   

  	
  2.3

  
	
  “Company”

  	
   

  	
  Preamble

  
	
  “Current Market Value”

  	
   

  	
  4.7

  
	
  “Exercise Price”

  	
   

  	
  3.1

  
	
  “Fair Value”

  	
   

  	
  4.2

  
	
  “Successor Company”

  	
   

  	
  4.5

  
	
  “Time of Determination”

  	
   

  	
  4.7

  
	
  “Transfer Agent”

  	
   

  	
  3.5

  
	
  “Warrant Agent”

  	
   

  	
  Preamble

  
	
  “Warrants”

  	
   

  	
  Recitals

  



 


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SECTION 1.3.  Rules of Construction.  Unless the text otherwise requires:


 


(a)                                  a term has the
meaning assigned to it;


 


(b)                                 an accounting term not
otherwise defined has the meaning assigned to it in accordance with generally
accepted accounting principles as in effect as of the date hereof;


 


(c)                                  “or” is not
exclusive;


 


(d)                                 “including” means including,
without limitation, except when preceded by a negative predicate; and


 


(e)                                  words in the singular
include the plural and words in the plural include the singular.


 


ARTICLE 2.


 


WARRANT CERTIFICATES


 


SECTION 2.1.  Issuance and Dating.  The Warrants shall be initially issued on
the Plan Effective Date or as soon as practicable thereafter in accordance with
the terms of the Plan of Reorganization. 
The Warrant Certificates will be issued in registered form as definitive
Warrant Certificates, substantially in the form of Exhibit A, which is
hereby incorporated in and expressly made a part of this Agreement.  The Warrant Certificates may have notations,
legends or endorsements required by law, stock exchange rules, agreements to
which the Company is subject, if any (provided that any such notation, legend
or endorsement is in a form acceptable to the Company).  Each Warrant Certificate shall be dated as
of the date of its countersignature. 
The terms of the Warrants set forth in Exhibit A are part of the
terms of this Agreement.


 


SECTION 2.2.
Execution and Countersignature. 
(a)  With respect to the Warrants
to be initially issued pursuant to the terms hereof, Warrant Certificates
registered in such names and representing such number of Warrants as specified by
the Warrant Agent shall be executed on behalf of the Company by manual or
facsimile signature by one Officer and attested by its Secretary or an
Assistant Secretary.  The Warrant Agent
shall countersign such Warrant Certificate(s) by manual or facsimile signature,
and such Warrant Certificate(s) shall be delivered in accordance with the terms
of the Plan of Reorganization and Section 2.1 hereof.  With respect to all other Warrants, the
Warrant Certificates therefor shall be executed on behalf of the Company by one
Officer and attested by its Secretary or an Assistant Secretary. Such signature
may be by manual or facsimile signature. 
If an Officer whose signature is on a Warrant Certificate no longer
holds that office at the time the Warrant Agent countersigns the Warrant
Certificate, the Warrant Certificate shall be valid nevertheless.  A Warrant Certificate shall not be valid
until an authorized signatory of the Warrant Agent either manually or by
facsimile countersigns the Warrant Certificate.  The signature shall be conclusive evidence that the Warrant
Certificate has been countersigned under this Agreement.


 


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(b)                                 The Warrant Agent may
appoint an agent reasonably acceptable to the Company to countersign the
Warrant Certificate.  Unless limited by
the terms of such appointment, such agent may countersign the Warrant
Certificate whenever the Warrant Agent may do so.  Each reference in this Agreement to countersignature by the
Warrant Agent includes by such agent. 
Such agent will have the same rights as the Warrant Agent for service of
notices and demands.


 


SECTION 2.3.  Certificate Register.  The Warrants shall be numbered and the
Warrant Agent shall keep a register (“Certificate Register”) of the Warrant Certificates
and of their transfer and exchange.  The
Certificate Register shall show the names and addresses of the respective
Holders and the date and number of Warrants evidenced on the face of each of
the Warrant Certificates.  The Company
and the Warrant Agent may deem and treat the Person in whose name a Warrant
Certificate is reflected as registered on the Certificate Register as the
absolute owner of such Warrant Certificate (notwithstanding any notation of
ownership or other writing thereon made by anyone) for all purposes whatsoever
and neither the Company nor the Warrant Agent shall be affected by notice to
the contrary.


 


SECTION 2.4.  Transfer and Exchange.  (a) 
Subject to Section 2.4(b) and (c), when Warrants are presented to
the Warrant Agent with a request to register the transfer of such Warrants or
to exchange such Warrants for an equal number of Warrants of other authorized
denominations, the Warrant Agent shall register the transfer or make the
exchange as requested if its reasonable requirements for such transaction are
met; provided, however, that the Warrant Certificates representing such
Warrants surrendered for transfer or exchange shall be duly endorsed or
accompanied by a written instrument of transfer on the reverse of the Warrant Certificates
or in form reasonably satisfactory to the Company and the Warrant Agent, duly
executed by the Holder thereof or his attorney duly authorized in writing.  Upon any such registration of transfer, a
new Warrant Certificate shall be issued to the transferee.  The Warrant Agent shall provide the Company
with prompt written notice of any proposed transfer of a Warrant.


 


(b)                                 No Warrants may be
sold, exchanged or otherwise transferred in violation of the Securities Act of
1933, as amended (the “Securities Act”), or state securities laws.  Further, no transfer shall be permitted if,
after giving effect to such transfer, the Company shall become a reporting
company the Exchange Act and solely as a consequence thereof.  In connection with any proposed transfer of
a Warrant, the Company shall be entitled to request, at the expense of the
Holder, an opinion of counsel reasonably satisfactory to the Company, that the
proposed transfer will not result in a violation of applicable federal or state
securities laws; provided, however, that the Company must make such request
within five Business Days of receiving notice from the Warrant Agent of a
proposed transfer.  The provisions of
this paragraph (b) shall not apply to the exercise of any Warrant to the extent
that the Shares issued upon such exercise (and any unexercised portion of the
Warrant so exercised) shall be issued to the same registered holder that
exercised such Warrant.


 


(c)                                  (i)  To permit registrations of transfers and
exchanges, the Company shall execute and the Warrant Agent shall countersign
Warrant Certificates as required pursuant to the provisions of
Section 2.2.


 


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(ii)                                  Warrant
Certificates issued upon any registration of transfer or exchange of Warrants
shall be the valid obligations of the Company, entitled to the same benefits
under this Agreement, as the Warrant Certificates surrendered upon such
registration of transfer or exchange. 
Any Warrant issued upon the transfer or exchange of a Warrant shall
continue to bear the same restrictive legends, if any, appearing upon the
Warrant transferred or exchanged, unless the Company receives an opinion of
counsel, reasonably satisfactory to it, that such legends are not required
under applicable federal or state securities laws.


 


(iii)                               The
Company shall not be required to issue any Warrant Certificate evidencing a
fraction of a Warrant or to issue fractions of shares of securities on the
exercise of the Warrants, and any fractional interest in a Warrant alone shall
be of no value whatsoever.  By accepting
a Warrant Certificate, the holder thereof expressly waives any right to receive
(A) a Warrant Certificate evidencing any fraction of a Warrant, (B) any
fractional share of securities upon exercise of a Warrant or (C) any value
whatsoever upon exercise of a fractional interest in a Warrant.


 


(iv)                              No
service charge shall be made to a Holder for any registration of transfer or
exchange upon surrender of any Warrant Certificate at the office of the Warrant
Agent maintained for that purpose. 
However, the Company may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Warrant Certificates.


 


(v)                                 In
the event of any purported transfer in violation of the provisions of this
Agreement, such purported transfer shall be void and of no effect and the
Warrant Agent shall not give effect to such transfer.


 


SECTION 2.5.  Replacement Certificates.  If a mutilated Warrant Certificate is
surrendered to the Warrant Agent or if the Holder of a Warrant Certificate
claims that the Warrant Certificate has been lost, destroyed or wrongfully
taken, the Company shall issue and the Warrant Agent shall countersign a replacement
Warrant Certificate if the reasonable requirements of the Warrant Agent and of
Section 8-405 of the Uniform Commercial Code as in effect in the State of
Delaware are met.  If required by the
Warrant Agent or the Company, such Holder shall furnish evidence of such loss,
destruction or theft reasonably satisfactory to the Company and the Warrant
Agent and shall furnish an indemnity bond sufficient in the judgment of the
Company and the Warrant Agent to protect the Company and the Warrant Agent from
any loss which either of them may suffer if such a replacement Warrant
Certificate is issued.  The Company and
the Warrant Agent may charge the Holder for their expenses in replacing a
Warrant Certificate.


 


SECTION 2.6.  Temporary Certificates.  Until definitive Warrant Certificates are
ready for delivery, the Company may prepare and the Warrant Agent shall
countersign temporary Warrant Certificates. 
Temporary Warrant Certificates shall be substantially in the form of definitive
Warrant Certificates but may have variations that the Company considers
appropriate for temporary Warrant Certificates.  Without unreasonable delay, the Company shall prepare and


 


5

















 


the Warrant Agent shall countersign definitive Warrant Certificates and
deliver them in exchange for temporary Warrant Certificates.


 


SECTION 2.7.  Cancellation.  (a) 
If the Company shall purchase or otherwise acquire Warrants (other than
Warrants held by the Company for distribution in accordance with the terms of
the Plan), the Warrant Certificates in respect thereof shall thereupon be
delivered to the Warrant Agent for cancellation.


 


(b)                                 The
Warrant Agent shall cancel and destroy all Warrant Certificates surrendered for
transfer, exchange, replacement, exercise or cancellation and deliver a
certificate of such destruction to the Company unless the Company directs the
Warrant Agent to deliver canceled Warrant Certificates to the Company.  The Company may not issue new Warrant
Certificates to replace Warrant Certificates to the extent they evidence
Warrants that have been exercised or Warrants that the Company has purchased or
otherwise acquired.


 


SECTION 2.8.  Payment of Taxes.  The Company will pay all documentary or
stamp taxes, if any, attributable to the initial issuance of the Warrants
pursuant to Section 2.1 and 2.2 and the initial issuance of the Warrant
Shares upon the exercise of Warrants, if the Warrant Shares are issued in the
name of the Holder to whom such Warrants were initially issued; provided, however,
that the Holder shall reasonably cooperate with the Company and the Warrant
Agent to minimize or eliminate any such taxes. 
Neither the Company nor the Warrant Agent will be required to pay any
tax or governmental charge that may be payable in connection with any transfer,
split up, combination or exchange of Warrants or Warrant Certificates.


 


ARTICLE 3.


 


EXERCISE TERMS


 


SECTION 3.1.  Exercise Price.  Each Warrant shall initially entitle the
Holder thereof, subject to adjustment pursuant to the terms of this Agreement,
to purchase (and the Company shall issue and sell to such Holder) one fully
paid and nonassessable share of Common Stock for a per share exercise price of
$25.00 (as the same may be adjusted pursuant to Article 4, the “Exercise Price”).


 


SECTION 3.2.  Exercise Periods.  (a) 
Subject to the terms and conditions set forth herein, each Warrant shall
be exercisable at any time or from time to time on or after the Plan Effective
Date.


 


(b)                                 No Warrant shall be
exercisable after 5:00 p.m., New York City time, on the Expiration Date.


 


SECTION 3.3.  Expiration.  A Warrant shall terminate and become void as of the earlier of
(a) 5:00 p.m., New York City time on the Expiration Date and (b) the time and
date such Warrant is exercised.


 


SECTION 3.4.
 Manner of Exercise.  Warrants may be exercised upon (a) surrender
to the Warrant Agent of the Warrant Certificates, together with the form of
election to purchase Common Stock (attached hereto as Exhibit B) duly
filled in and signed by the Holder thereof or


 


6

















 


by such Holder’s duly authorized attorney and (b) payment to the
Warrant Agent, for the account of the Company, of the Exercise Price multiplied
by the number of Warrant Shares in respect of which such Warrant is then
exercised.  Such payment shall be made
in cash or by certified or official bank check payable to the order of the
Company or by wire transfer of immediately available funds to an account
designated by the Company for such purpose. 
Subject to Section 3.2, the rights represented by the Warrants
shall be exercisable at the election of the Holders thereof either in full at
any time or from time to time in part and in the event that a Warrant
Certificate is surrendered for exercise in respect of less than all the Warrant
Shares purchasable on such exercise at any time prior to the Expiration Date a
new Warrant Certificate exercisable for the remaining number of full Warrant
Shares will be issued.  The Warrant
Agent shall countersign and deliver the required new Warrant Certificates, and
the Company, at the Warrant Agent’s request, shall supply the Warrant Agent
with Warrant Certificates duly signed on behalf of the Company in accordance
with Section 2.2 for such purpose.


 


SECTION 3.5.  Issuance of Warrant Shares.  (a) 
Upon the surrender of Warrant Certificates and payment of the per share
Exercise Price, as set forth in Section 3.4, the Company shall, as soon as
practicable and in any event within three (3) Business Days after such
exercise, issue and cause the Warrant Agent or, if appointed, a transfer agent
for the Common Stock (“Transfer Agent”) to countersign and deliver to or upon
the written order of the Holder and in such name or names as the Holder may
designate, a certificate or certificates for the number of full Warrant Shares
so purchased upon the exercise of such Warrants or other securities or property
to which it is entitled, registered or otherwise to the Person or Persons
entitled to receive the same, together with cash as provided in
Section 3.6 in respect of any fractional Warrant Shares otherwise issuable
upon such exercise; provided, however, that if the Company is requested to
issue Common Stock upon the exercise of a Warrant to any Person other than the
Holder, then the Company shall be entitled to request, at the expense of the
Holder, an opinion of counsel for the Holder, reasonably satisfactory to the
Company, that the requested issuance will not violate applicable federal or
state securities laws.  Such certificate
or certificates shall be deemed to have been issued and any Person so
designated to be named therein shall be deemed to have become a holder of
record of such Warrant Shares as of the date of the surrender of such Warrant
Certificates and payment of the per share Exercise Price.


 


(b)                                 The Warrant Agent
shall account promptly to the Company with respect to Warrants exercised and
concurrently pay or deliver to the Company all moneys and other consideration
received by it in connection with the purchase of Warrant Shares through the
exercise of Warrants.


 


SECTION 3.6.  Fractional Warrant Shares.  The Company shall not be required to issue
fractional Warrant Shares on the exercise of Warrants.  If more than one Warrant shall be exercised
in full at the same time by the same Holder, the number of full Warrant Shares
which shall be issuable upon such exercise shall be computed on the basis of
the aggregate number of Warrant Shares purchasable pursuant thereto.  If any fraction of a Warrant Share would,
except for the provisions of this Section 3.6, be issuable on the exercise
of any Warrant, the Company shall pay an amount in cash equal to the Current
Market Value for one Warrant Share on the Business Day immediately preceding
the date the Warrant is exercised, multiplied by such fraction, computed to the
nearest whole cent.


 


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SECTION 3.7.  Reservation of Warrant Shares;
Restrictive Legends.  (a)  The Company shall at all times keep reserved
out of its authorized shares of Common Stock a number of shares of Common Stock
sufficient to provide for the exercise of all outstanding Warrants.  The registrar for the Common Stock shall at
all times until the Expiration Date, or the time at which all Warrants have
been exercised or cancelled, reserve such number of authorized shares as shall
be required for such purpose.  The
Company will keep a copy of this Agreement on file with the Transfer
Agent.  All Warrant Shares which may be
issued upon exercise of Warrants shall, upon issue, be fully paid,
nonassessable, free of preemptive rights and free from all taxes, liens,
charges and security interests imposed or created by the Company.  The Company will supply such Transfer Agent
with duly executed stock certificates for such purpose and will itself provide
or otherwise make available any cash which may be payable as provided in
Section 3.6.  The Company will
furnish to such Transfer Agent a copy of all notices of adjustments and
certificates related thereto transmitted to each Holder.


 


(b)                                 Before taking any
action that would cause an adjustment pursuant to Article 4 reducing any
Exercise Price below the then par value (if any) of the Warrant Shares, the
Company will take any reasonable corporate action that may, in the opinion of
its counsel, be necessary in order that the Company may validly and legally
issue fully paid and nonassessable Shares at such Exercise Price as so
adjusted.


 


(c)                                  Each certificate
representing Warrant Shares and each certificate representing securities issued
upon the direct or indirect transfer of any such Common Stock shall be stamped
or otherwise imprinted with a legend in the following or a comparable form:


 


“The securities
represented by this certificate have not been registered under the Securities
Act of 1933, as amended, and may not be transferred in the absence of such
registration or an exemption therefrom under such Act.”


 


The holder (or its transferee, as applicable)
of any restricted shares of Common Stock shall be entitled to receive from the
Company, without expense, new securities of like tenor not bearing the legend
set forth above when such securities shall have been (i) effectively registered
under the Securities Act and disposed of in accordance with a registration
statement covering such securities, (ii) disposed of pursuant to the provisions
of Rule 144 or any comparable rule under the Securities Act, or (iii) when, in
the written reasonable opinion of independent counsel for the holder thereof
experienced in Securities Act matters, which counsel and opinion shall be
reasonably satisfactory to the Company, such restrictions are no longer
required in order to insure compliance with the Securities Act (including when
the provisions of Rule 144(k) or any comparable rule under the Securities Act
have been satisfied).


 


Such certificates representing shares of
Registrable Common Stock (as defined in the Registration Rights Agreement (the
“Registration Rights Agreement”), dated as of the date hereof, among the
Company and certain securityholders of the Company), so long as the
Registration Rights Agreement is in effect, shall be stamped or otherwise
imprinted with a legend in the following or a comparable form:


 


8

















 


“The sale, encumbrance or
other disposition of the shares represented by this certificate are subject to
the provisions of a Registration Rights Agreement to which the issuer and
certain of its stockholders are party, a copy of which may be inspected at the
principal office of the issuer or obtained from the issuer without charge.”


 


SECTION 3.8.  Compliance with Law.  If any shares of Common Stock required to be
reserved for purposes of the exercise of Warrants require, under any federal or
state law or applicable governing rule or regulation of any national securities
exchange or national market system, registration with or approval of any
governmental authority, or listing on any such national securities exchange or
national market system before such shares may be issued upon exercise, the
Company will use its reasonable best efforts to cause such shares to be duly
registered or approved by such governmental authority or listed on the relevant
national securities exchange or national market system; provided that the
Company shall not have any obligation under this Agreement, other than as set
forth in Section 5.1, to register the Warrant Shares under the Securities
Act or state securities laws.


 


SECTION 3.9.  Payment of Taxes.  The Company will pay all expenses, taxes and
other charges payable in connection with the preparation, issuance and delivery
of certificates representing Warrant Shares or Warrant Certificates
representing unexercised Warrants in connection with any exercise of Warrants
in accordance with Section 3.4, except that, if any such certificates
representing Warrant Shares or any such Warrant Certificates are to be
registered in a name or names other than that of the Holder at the time of any
such exercise of Warrants, funds sufficient to pay all transfer or similar
taxes payable as a result of such transfer shall be paid by the Holder at the
time of such exercise or promptly upon receipt of a written request of the
Company for payment thereof.  In
connection with any exercise of Warrants in accordance with Section 3.4,
the Warrants will be deemed to have been exercised, any certificate
representing Warrant Shares or any Warrant Certificate issued on account
thereof will be deemed to have been issued, and the Person in whose name any
such certificate or Warrant Certificate is issued will be deemed for all
purposes to have become a holder of record of the Warrant Shares or Warrants,
as the case may be, represented thereby as of the date of surrender of the
subject Warrant Certificate and payment of the per share Exercise Price.


 


ARTICLE 4.


 


ANTIDILUTION PROVISIONS


 


SECTION 4.1.  Changes
in Common Stock.  In the event that
at any time or from time to time after the date hereof the Company shall (a)
pay a dividend in shares of its Common Stock or make a distribution on its
Common Stock in shares of its Common Stock, (b) subdivide its outstanding
shares of Common Stock into a larger number of shares of Common Stock,
(c) combine its outstanding shares of Common Stock into a smaller number
of shares of Common Stock or (d) increase or decrease the number of shares of
Common Stock outstanding by reclassification of its Common Stock, then, except
as provided in Section 4.3 below, the number of shares of Common Stock
purchasable upon exercise of each Warrant immediately after the happening of such
event shall be adjusted so that, after giving affect to such adjustment,


 


9

















 


the Holder of each Warrant shall be entitled to receive the number of
shares of Common Stock upon exercise that such Holder would have owned had such
Warrant been exercised immediately prior to the happening of the events
described above (or, in the case of a dividend or distribution of Common Stock,
immediately prior to the record date therefor).  An adjustment made pursuant to this Section 4.1 shall become
effective immediately after the effective date of any such event described
above, retroactive to the record date therefor in the case of a dividend or
distribution in shares of Common Stock, and shall become effective immediately
after the effective date in the case of a subdivision, combination or
reclassification.


 


SECTION 4.2.  Cash Dividends and Other Distributions.  In the event that at any time or from time
to time after the date hereof the Company shall distribute to all holders of
Common Stock (a) any dividend or other distribution of cash, evidences of its
indebtedness, shares of its capital stock (other than its Common Stock) or any
other properties or securities or (b) any options, warrants or other rights to
subscribe for or purchase any of the foregoing (other than, in each case set
forth in (a) and (b), (i) any dividend or distribution described in
Section 4.1 or (ii) any regular cash dividend, including increases
thereof), then the number of shares of Common Stock thereafter purchasable upon
the exercise of each Warrant shall be increased to a number determined by
multiplying the number of shares of Common Stock purchasable upon the exercise
of such Warrant immediately prior to the record date for any such dividend or
distribution by a fraction, the numerator of which shall be the Current Market
Value per share of Common Stock on the record date for such distribution, and
the denominator of which shall be such Current Market Value per share of Common
Stock less the sum of (x) any cash distributed per share of Common Stock
(excluding any regular cash dividends, including increases thereof) and (y) the
fair value (the “Fair Value”) (as determined in good faith by the Board, whose
determination shall be evidenced by a board resolution filed with the Warrant
Agent, a copy of which will be sent to Holders upon request) of the portion, if
any, of the distribution applicable to one share of Common Stock consisting of
evidences of indebtedness, shares of stock, securities, other property,
warrants, options or subscription of purchase rights (notwithstanding the
foregoing, if the Fair Value per share of Common Stock in the above formula
equals or exceeds the Current Market Value per share of Common Stock in the
above formula, then the Current Market Value per share of Common Stock shall be
equal to the Fair Value per share of the Common Stock on the record date as
determined in good faith by the Board, whose determination shall be evidenced
by a board resolution filed with the Warrant Agent, a copy of which will be
sent to the Holders upon request). Such adjustments shall be made whenever any
distribution is made and shall become effective as of the date of distribution,
retroactive to the record date for any such distribution; provided, however,
that the Company is not required to make an adjustment pursuant to this
Section 4.2 if at the time of such distribution the Company makes the same
distribution to Holders of Warrants as it makes to holders of Common Stock
based on the number of shares of Common Stock for which such Warrants are
exercisable (whether or not currently exercisable).


 


SECTION 4.3.  Fundamental Change; Liquidation.  (a) 
Except as provided in Section 4.3(b), in the event of any
Fundamental Change, the Holders shall have the right to receive upon the
exercise of each Warrant such number of shares of capital stock or other
securities or property (including cash) which such Holder would have been
entitled to receive upon or as a result of such Fundamental Change had such Warrant
been exercised immediately prior to such event. The provisions of this
Section 4.3(a) shall similarly apply to successive


 


10

















 


Fundamental Changes involving any surviving or acquiring Person (the
“Successor Company”) in such Fundamental Change.


 


(b)                                 In the event of (i) a
Fundamental Change where consideration to holders of Common Stock in exchange
for their shares is payable solely in cash, or (ii) the dissolution,
liquidation or winding-up of the Company in which holders of Common Stock shall
receive a cash payment or other consideration in respect of their shares of
Common Stock, then the Holders of the Warrants will be entitled to receive
distributions on an equal basis with the holders of Common Stock or other
securities issuable upon exercise of the Warrants, as if the Warrants had been
exercised immediately prior to such event, less the aggregate Exercise Price.


 


(c)                                  In case of any
Fundamental Change described in Section 4.3(b), the Successor Company and,
in the event of any dissolution, liquidation or winding-up of the Company in
which holders of the Common Stock will receive a cash payment or other
consideration in respect of their shares of Common Stock, the Company shall
deposit with the Warrant Agent, prior to the effective time of such Fundamental
Change or such dissolution, liquidation, or winding-up, the funds, if any,
necessary to pay to the holders of the Warrants the amounts to which they are
entitled as described above.  After such
funds and the surrendered Warrant Certificates are received, the Warrant Agent
shall make payment to the Holders by delivering a check or wire transfer of
immediately available funds in such amount as is appropriate (or, in the case
of consideration other than cash, such other consideration as is appropriate)
to such Person or Persons as it may be directed in writing by the Holders
surrendering such Warrants.  Upon the
deposit of sufficient funds to fulfill the Company’s obligations hereunder,
which amount shall be further adjusted in accordance with subsequent changes in
the terms of any Fundamental Change described herein, if any, the Warrants
shall thereafter represent only the right to receive such cash payments or
other consideration and the Company’s obligations in respect of the Warrants
shall be discharged; provided, however, that if such a deposit is made in
anticipation of a Fundamental Change, such Fundamental Change must actually be
consummated before the Company’s obligations in respect of the Warrants shall
be discharged.


 


SECTION 4.4.  Other Adjustments.  If any event shall occur as to which the
provisions of this Article 4 are not strictly applicable, but as to which
failure to make any adjustment would, in the reasonable judgment of the Board,
adversely affect the purchase rights of the Warrants in accordance with the
essential intent and principles of the preceding Sections of this Article 4
(which are to place the Holder of a Warrant in a position as nearly as equal as
possible to the position such Holder would have occupied had such Holder
purchased Common Stock on the date hereof), then, in each case, the Warrants
shall be adjusted in such a manner as may be equitable in the circumstances as
the Board acting in good faith shall determine is necessary to protect the
purchase rights of the Warrants.


 


SECTION 4.5.  Excluded Issuances.  Notwithstanding any other provision of this
Article 4, no adjustment shall be made pursuant to this Article 4 in
respect of the issuance of (i) Common Stock upon conversion or exercise of
any convertible securities, options, conversion or exchange rights, or
subscription calls, warrants, commitments or claims, provided that the
foregoing are issued and outstanding on the date hereof, (ii) Common Stock,
restricted or otherwise, or options issued pursuant to the New Incentive Equity
Plan or (iii) Common Stock, restricted or otherwise, or options issued to the
Chief Executive Officer of the Company and


 


11

















 


other senior executive officers of the Company in connection with
employment and/or other incentive compensation arrangements.


 


SECTION 4.6.  Current Market Value.  For the purpose of any computation of
Current Market Value under Section 3.6 and Section 4.2, the “Current
Market Value” per share of Common Stock at any date shall be (a) for purposes
of Section 3.6, the closing price on the Business Day immediately prior to
the date of the exercise of the applicable Warrant pursuant to Article 3 and
(b) in all other cases, the average of the daily closing prices for the shorter
of (i) the 20 consecutive trading days ending on the last full trading day on
the exchange or market specified in the second succeeding sentence prior to the
Time of Determination (as defined below) and (ii) the period commencing on the
date next succeeding the first public announcement of the issuance, sale,
distribution or granting in question through such last full trading day prior
to the Time of Determination.  The term
“Time of Determination” as used herein shall be the time and date of the
earlier to occur of (A) the date as of which the Current Market Value is to be
computed or (B) the last full trading day on such exchange or market before the
commencement of “ex-dividend” trading in the Common Stock relating to the event
giving rise to the adjustment required by Section 4.2.  The closing price for any day shall be the
last reported sale price regular way or, in case no such reported sale takes
place on such day, the average of the closing bid and asked prices regular way
for such day, in each case (1) on the principal national securities exchange on
which the shares of Common Stock are listed or to which such shares are
admitted to trading or (2) if the Common Stock is not listed or admitted to
trading on a national securities exchange, in the over-the-counter market as
reported by the Nasdaq National Market or any comparable system or (3) if the
Common Stock is not listed on the Nasdaq National Market or a comparable
system, as furnished by two members of the NASD selected from time to time in
good faith by the Board for that purpose. 
In the absence of all of the foregoing, or if for any other reason the
Current Market Value per share cannot be determined pursuant to the foregoing
provisions of this Section 4.6, the Current Market Value per share shall
be the fair value thereof determined in good faith by the Board, whose
determination shall be evidenced by a Board resolution filed with the Warrant
Agent.


 


SECTION 4.7.  Adjustment to Exercise Price.  Upon each event that provides for an
adjustment of the number of shares of Common Stock issuable upon exercise of
each Warrant pursuant to this Article 4, each Warrant outstanding prior to the
making of the adjustment shall thereafter have an adjusted Exercise Price
(calculated to the nearest hundredth) equal to an amount determined by
multiplying the Exercise Price immediately prior to adjustment by a fraction,
the numerator of which shall be the number of shares of Common Stock issuable
upon exercise of a Warrant prior to adjustment and the denominator of which
shall be the adjusted number of shares of Common Stock issuable upon exercise
of a Warrant subsequent to such adjustment pursuant to this Article 4.


 


SECTION 4.8.  Superseding Adjustment.  Upon the expiration of any rights, options,
warrants or conversion or exchange privileges which resulted in the adjustments
pursuant to this Article 4, if any thereof shall not have been exercised, the
number of Warrant Shares purchasable upon the exercise of each Warrant shall be
readjusted as if (a) the only shares of Common Stock issuable upon exercise of
such rights, options, warrants, conversion or exchange privileges were the
shares of Common Stock, if any, actually issued upon the exercise of such
rights, options, warrants or conversion or exchange privileges and (b) shares
of Common Stock actually issued,


 


12

















 


if any, were issuable for the consideration actually received by the
Company upon such exercise plus the aggregate consideration, if any, actually
received by the Company for the issuance, sale or grant of all such rights,
options, warrants or conversion or exchange privileges whether or not
exercised; provided, however, that no such readjustment shall (except by reason
of an intervening adjustment under Section 4.1) have the effect of
decreasing the number of Warrant Shares purchasable upon the exercise of each
Warrant by an amount in excess of the amount of the adjustment initially made
in respect of the issuance, sale or grant of such rights, options, warrants or
conversion or exchange privileges.


 


SECTION 4.9.  Minimum Adjustment.  The adjustments required by the preceding
Sections of this Article 4 shall be made whenever and as often as any specified
event requiring an adjustment shall occur, except that no adjustment of the
number of shares of Common Stock purchasable upon exercise of Warrants that
would otherwise be required shall be made unless and until such adjustment
either by itself or with other adjustments not previously made increases or
decreases by at least 1% the number of shares of Common Stock purchasable upon
exercise of Warrants immediately prior to the making of such adjustment.  Any adjustment representing a change of less
than such minimum amount shall be carried forward and made as soon as such
adjustment, together with other adjustments required by this Article 4 and not
previously made, would result in at least a minimum adjustment.  For the purpose of any adjustment, any
specified event shall be deemed to have occurred at the close of business on
the date of its occurrence.  In
computing adjustments under this Article 4, fractional interests in Common
Stock shall be disregarded.


 


SECTION 4.10.  Notice of Adjustment.  Whenever the number of shares of Common
Stock and other property, if any, purchasable upon exercise of Warrants is
adjusted, as herein provided, the Company shall, within a reasonable time,
deliver to the Warrant Agent a certificate setting forth, in reasonable detail,
the event requiring the adjustment and the method by which such adjustment was
calculated (including a description of the basis on which the Board determined
the fair market value of any evidences of indebtedness, other securities or
property or warrants, options or other subscription or purchase rights), and
specifying the number of shares of Common Stock purchasable upon exercise of
Warrants and the Exercise Price after giving effect to such adjustment.  The Company shall promptly cause the Warrant
Agent to mail a copy of such certificate to each Holder in accordance with
Section 8.6.  The Warrant Agent
shall be entitled to rely on such certificate and shall be under no duty or
responsibility with respect to any such certificate, except to exhibit the same
from time to time to any Holder desiring an inspection thereof during
reasonable business hours.  The Warrant
Agent shall not at any time be under any duty or responsibility to any Holder
to determine whether any facts exist which may require any adjustment of the
Exercise Price or the number of shares of Common Stock or other stock or
property purchasable on exercise of the Warrants, or with respect to the nature
or extent of any such adjustment when made, or with respect to the method
employed in making such adjustment or the validity or value of any shares of
Common Stock. Failure to give any such notice shall not affect the validity of
any such action.


 


SECTION 4.11.  Notice of Certain Transactions.  If the Company shall propose (a) to pay any
dividend payable in securities of any class to the holders of its Common Stock
or to make any other distribution to the holders of its Common Stock (other
than regular cash dividends or any increases thereof), (b) to offer the holders
of its Common Stock rights to subscribe for or to


 


13

















 


purchase any securities convertible into shares of Common Stock or any
other securities, rights or options, (c) to effect any reclassification of its
Common Stock, capital reorganization or Fundamental Change, (d) to effect the
voluntary or involuntary dissolution, liquidation or winding-up of the Company,
(e) to register any Common Stock pursuant to the Securities Act or (f) to
effect any other event which would require adjustments under Article 4, the
Company shall within five Business Days of the adoption of a Board resolution
approving such action send to the Warrant Agent, and the Warrant Agent shall
within five Business Days thereafter send the Holders, a notice (in such form
as shall be furnished to the Warrant Agent by the Company) of such proposed
action, such notice to be mailed by the Warrant Agent to the Holders at their
addresses as they appear in the Certificate Register, which shall specify the
record date (if any) for the purposes of such dividend, distribution or rights,
or the date such issuance or event is to take place and the date of
participation therein by the holders of Common Stock, if any such date is to be
fixed, and shall briefly indicate the effect of such action on the Common Stock
and on the number and kind of any other shares of stock and on other property,
if any, and the number of shares of Common Stock and other property, if any,
purchasable upon exercise of each Warrant and the Exercise Price after giving effect
to any adjustment which will be required as a result of such action.  Such notice shall be given by the Company as
promptly as possible and, in the case of any action covered by clause (a) or
(b) above, at least 15 Business Days prior to the record date for determining
holders of the Common Stock for purposes of such action and, in the case of any
other such action, at least 20 Business Days prior to the date of the taking of
such proposed action or the date of participation therein by the holders of Common
Stock, whichever shall be the earlier.


 


SECTION 4.12.  Adjustment to Warrant Certificate.  The form of Warrant Certificate need not be
changed because of any adjustment made pursuant to this Article 4, and Warrant
Certificates issued after such adjustment may state the same number of shares
of Common Stock as are stated in any Warrant Certificates issued prior to the
adjustment.  The Company, however, may
at any time in its sole discretion make any change in the form of the Warrant
Certificate that it may deem appropriate to give effect to such adjustments and
that does not affect the substance of the Warrant Certificate, and any Warrant
Certificate thereafter issued or countersigned, whether in exchange or
substitution for an outstanding Warrant Certificate or otherwise, may be in the
form as so changed.


 


ARTICLE 5.


 


WARRANT AGENT


 


SECTION 5.1.  Appointment of Warrant Agent.  The Company hereby appoints the Warrant
Agent to act as agent for the Company in accordance with provisions of this
Agreement and the Warrant Agent hereby accepts such appointment.


 


SECTION 5.2.  Rights and Duties of Warrant Agent.  (a) 
In acting under this Agreement and in connection with the Warrant
Certificates, the Warrant Agent is acting solely as agent of the Company and does
not assume any obligation or relationship or agency or trust for or with any of
the holders of Warrant Certificates or beneficial owners of Warrants.


 


14

















 


(b)                                 The Warrant Agent may
consult with counsel reasonably satisfactory to it and the Company, and the
advice of such counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by it hereunder in good
faith and in accordance with the advice of such counsel.


 


(c)                                  The Warrant Agent
shall be protected and shall incur no liability for or in respect of any action
taken or thing suffered by it in reliance upon any Warrant Certificate, notice,
direction, consent, certificate, affidavit, statement or other paper or
document reasonably believed by it to be genuine and to have been presented or
signed by the proper parties.


 


(d)                                 The Warrant Agent
shall be obligated to perform only such duties as are herein and in the Warrant
Certificates specifically set forth and no implied duties or obligations shall
be read into this Agreement or the Warrant Certificates against the Warrant
Agent.  The Warrant Agent shall not be
under any obligation to take any action hereunder which may tend to involve it
in any expense or liability for which it does not receive indemnity if such
indemnity is reasonably requested.  The
Warrant Agent shall not be accountable or under any duty or responsibility for
the use by the Company of any of the Warrant Certificates countersigned by the
Warrant Agent and delivered by it to the Holders or on behalf of the Holders
pursuant to this Agreement or for the application by the Company of the
proceeds of the Warrants.  The Warrant
Agent shall have no duty or responsibility in case of any default by the
Company in the performance of its covenants or agreements contained herein or
in the Warrant Certificates or in the case of the receipt of any written demand
from a Holder with respect to such default, including any duty or
responsibility to initiate or attempt to initiate any proceedings at law or
otherwise.


 


(e)                                  The Warrant Agent
shall not at any time be under any duty or responsibility to any Holder to
determine whether any facts exist that may require an adjustment of the number
of shares of Common Stock purchasable upon exercise of each Warrant or with
respect to the nature or extent of any adjustment when made, or with respect to
the method employed, or herein or in any supplemental agreement provided to be
employed, in making the same.  The
Warrant Agent shall not be accountable with respect to the validity or value of
any shares of Common Stock or of any securities or property which may at any
time be issued or delivered upon the exercise of any Warrant or upon any
adjustment pursuant to Article 4, and it makes no representation with respect
thereto.  The Warrant Agent shall not be
responsible for any failure of the Company to make any cash payment or to
issue, transfer or deliver any shares of Common Stock or stock certificates
upon the surrender of any Warrant Certificate for the purpose of exercise or
upon any adjustment pursuant to Article 4, or to comply with any of the
covenants of the Company contained in Article 4.


 


(f)                                    The Warrant Agent
is hereby authorized and directed to accept instructions with respect to the
performance of its duties hereunder from the Chairman of the Board, the Chief
Executive Officer, the President, any Vice President, the Treasurer, the
Secretary or an Assistant Secretary of the Company, and to apply to such
officers for advice or instructions in connection with its duties, and shall
not be liable for any action taken or suffered to be taken by it in good faith
in accordance with instructions of any such officer or in good faith reliance
upon any statement signed by any one of such officers of the Company with
respect to any fact or matter


 


15

















 


(unless other evidence in respect thereof is herein specifically
prescribed) which may be deemed to be conclusively proved and established by
such signed statement.


 


SECTION 5.3.  Individual Rights of Warrant Agent.  Subject to compliance with applicable
federal and state securities laws, the Warrant Agent and any stockholder,
director, officer or employee of the Warrant Agent may buy, sell or deal in any
of the Warrants or other securities of the Company or its Affiliates or obtain
a pecuniary interest in transactions in which the Company or its Affiliates may
be interested, or contract with or lend money to the Company or its Affiliates
or otherwise act as fully and freely as though it were not the Warrant Agent
under this Agreement.  Nothing herein
shall preclude the Warrant Agent from acting in any other capacity for the
Company or for any other legal entity.


 


SECTION 5.4.  Warrant Agent’s Disclaimer.  The Warrant Agent shall not be responsible
for and makes no representation as to the validity or adequacy of this
Agreement or the Warrant Certificates and it shall not be responsible for any
statement in this Agreement or the Warrant Certificates other than its
countersignature thereon.


 


SECTION 5.5.  Compensation and Indemnity.  The Company and the Warrant Agent have
entered into an agreement pursuant to which the Company agrees to pay the
Warrant Agent from time to time reasonable compensation for its services and to
reimburse the Warrant Agent upon request for all reasonable out of pocket
expenses incurred by it, including the reasonable compensation and expenses of
the Warrant Agent’s agents and counsel. 
The Company shall indemnify and hold harmless the Warrant Agent against
any loss, liability or reasonable expense (including reasonable agents’ and
attorneys’ fees and expenses) incurred by it without willful misconduct,
negligence or bad faith on its part arising out of or in connection with the
acceptance or performance of its duties under this Agreement.  The Warrant Agent shall notify the Company
promptly of any claim for which it may seek indemnity and the failure to
provide such notice shall not prejudice the Warrant Agent’s right to indemnity
hereunder unless and to the extent that the Company’s ability to defend any
such claim shall have been compromised as a result of such failure to
notify.  The Company need not reimburse
any expense or indemnify against any loss or liability incurred by the Warrant
Agent through willful misconduct, negligence or bad faith.  The Company’s payment obligations pursuant
to this Section 5.5 shall survive the termination of this Agreement.


 


SECTION 5.6.  Successor Warrant Agent.  (a) 
The Company agrees for the benefit of the Holders that there shall at
all times be a Warrant Agent hereunder until all the Warrants have been
exercised or are no longer exercisable.


 


(b)                                 The Warrant Agent may
at any time resign by giving written notice to the Company of such intention on
its part, specifying the date on which its desired resignation shall become
effective; provided, however, that such date shall not be less than 30 days
after the date on which such notice is given, unless the Company otherwise agrees.  The Warrant Agent hereunder may be removed
at any time by the filing with it of an instrument in writing signed by or on
behalf of the Company and specifying such removal and the date when it shall
become effective, which date shall not be less than 30 days after such notice
is given unless the Warrant Agent otherwise agrees.  Any removal under this Section 5.6 shall take effect upon
the appointment by the Company as hereinafter provided of a successor Warrant
Agent (which shall


 


16

















 


be a bank or trust company authorized under the laws of the
jurisdiction of its organization to exercise corporate trust powers) and the
acceptance of such appointment by such successor Warrant Agent.


 


(c)                                  In case at any time the
Warrant Agent shall resign, or shall be removed, or shall become incapable of
acting, or shall be adjudged a bankrupt or insolvent, or shall commence a
voluntary case under the Federal bankruptcy laws, as now or hereafter
constituted, or under any other applicable Federal or state bankruptcy,
insolvency or similar law or shall consent to the appointment of or taking
possession by a receiver, custodian, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Warrant Agent or its property
or affairs, or shall make an assignment for the benefit of creditors, or shall
admit in writing its inability to pay its debts generally as they become due,
or shall take corporate action in furtherance of any such action, or a decree
or order for relief by a court having jurisdiction in the premises shall have
been entered in respect of the Warrant Agent in an involuntary case under the
Federal bankruptcy laws, as now or hereafter constituted, or any other
applicable Federal or State bankruptcy, insolvency or similar law; or a decree
or order for relief by a court having jurisdiction in the premises shall have
been entered for the appointment of a receiver, custodian, liquidator,
assignee, trustee, sequestrator (or similar official) of the Warrant Agent or
of its property or affairs, or any public officer shall take charge or control
of the Warrant Agent or of its property or affairs for the purpose of
rehabilitation, conservation, winding up of or liquidation, a successor Warrant
Agent, qualified as aforesaid, shall be appointed by the Company by an
instrument in writing, filed with the successor Warrant Agent.  Upon the appointment as aforesaid of a
successor Warrant Agent and acceptance by the successor Warrant Agent of such
appointment, the Warrant Agent shall cease to be Warrant Agent hereunder;
provided, however, that in the event of the resignation of the Warrant Agent
hereunder, such resignation shall be effective on the earlier of (i) the date
specified in the Warrant Agent’s notice of resignation and (ii) the appointment
and acceptance of a successor Warrant Agent hereunder.


 


(d)                                 Any successor Warrant
Agent appointed hereunder shall execute, acknowledge and deliver to its
predecessor and to the Company an instrument accepting such appointment hereunder,
and thereupon such successor Warrant Agent, without any further act, deed or
conveyance, shall become vested with all the rights and obligations of such
predecessor with like effect as if originally named as Warrant Agent hereunder,
and such predecessor, upon payment of its charges and disbursements then
unpaid, shall thereupon become obligated to transfer, deliver and pay over, and
such successor Warrant Agent shall be entitled to receive, all monies,
securities and other property on deposit with or held by such predecessor, as
Warrant Agent hereunder.  As soon as
practicable after appointment of the successor Warrant Agent, the Company shall
cause written notice of the change in the Warrant Agent to be given to each of
the registered holders of the Warrant Certificates at such holder’s address
appearing on the Certificate Register. 
Failure to give any notice provided for in this Section 5.6(d) or
any defect therein, shall not affect the legality or validity of the removal of
the Warrant Agent or the appointment of a successor Warrant Agent, as the case
may be.


 


(e)                                  Any corporation into
which the Warrant Agent hereunder may be merged or consolidated, or any
corporation resulting from any merger or consolidation to which the Warrant
Agent shall be a party, or any corporation to which the Warrant Agent shall
sell or otherwise transfer all or substantially all the assets and business of
the Warrant Agent, provided


 


17

















 


that it shall be qualified as aforesaid, shall be the successor Warrant
Agent under this Agreement without the execution or filing of any paper or any
further act on the part of any of the parties hereto, provided that such
corporation would be eligible for appointment as a successor Warrant Agent
under the provisions of Section 5.6(b).


 


(f)                                    If at the time a
successor to the Warrant Agent shall succeed under this Agreement, any of the
Warrant Certificates shall have been countersigned but not delivered, any such
successor to the Warrant Agent may adopt the countersignature of the original
Warrant Agent; and if at that time any of the Warrant Certificates shall not
have been countersigned, any successor to the Warrant Agent may countersign
such Warrant Certificates either in the name of the predecessor Warrant Agent
or in the name of the successor Warrant Agent; and in all such cases such
Warrant Certificates shall have the full force provided in the Warrant
Certificates and in this Agreement.


 


(g)                                 If at any time the
name of the Warrant Agent shall be changed and at such time any of the Warrant
Certificates shall have been countersigned but not delivered, the Warrant Agent
whose name has changed may adopt the countersignature under its prior name; and
if at that time any of the Warrant Certificates shall not have been
countersigned, the Warrant Agent may countersign such Warrant Certificates
either in its prior name or in its changed name; and in all such cases such
Warrant Certificates shall have the full force provided in the Warrant
Certificates and in this Agreement.


 


ARTICLE 6.


 


REPRESENTATIONS, WARRANTIES AND AGREEMENTS


 


SECTION 6.1.  Agreement of Warrant Holders.  Every Holder by accepting a Warrant
Certificate consents and agrees with the Company and the Warrant Agent and with
every other Holder that:


 


(a)                                  the Warrant
Certificates are transferable only in accordance with the terms of this
Agreement and only on the registry books of the Warrant Agent if surrendered at
the principal office of the Warrant Agent designated for such purpose, duly
endorsed or accompanied by a proper instrument of transfer, and otherwise in
compliance with Article 2;


 


(b)                                 the Company and the
Warrant Agent may deem and treat the Person in whose name the Warrant
Certificate is registered on the Certificate Register as the absolute owner
thereof and of the Warrants evidenced thereby (notwithstanding any notations of
ownership or writing on the Warrant Certificate made by anyone other than the
Company or the Warrant Agent) for all purposes whatsoever, and neither the Company
nor the Warrant Agent will be affected by any notice to the contrary;


 


(c)                                  notwithstanding
anything in this Agreement to the contrary, the Warrant Agent will not have any
liability to any Holder or other Person as a result of its inability to perform
any of its obligations under this Agreement by reason of any preliminary or
permanent injunction or other order, decree or ruling issued by a court of
competent jurisdiction or by a governmental, regulatory or administrative
agency or commission, or any statute, rule, regulation or executive


 


18

















 


order promulgated or enacted by any governmental authority, prohibiting
or otherwise restraining performance of such obligation; provided, however,
that the Company will use commercially reasonable efforts to have any such
order, decree or ruling lifted or otherwise overturned as soon as possible.


 


SECTION 6.2.  Representations and Warranties of the
Company.  The Company hereby
represents and warrants to the Warrant Agent that, subject to the receipt of
any necessary approvals from the Bankruptcy Court:


 


(a)                                  the Company is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware and has all requisite corporate power and
authority to execute, deliver and perform its obligations hereunder and to
consummate the transactions contemplated hereby;


 


(b)                                 the execution,
delivery and performance of this Agreement by the Company and the consummation
by the Company of the transactions contemplated hereby have been duly
authorized by all necessary corporate action on the part of the Company;


 


(c)                                  the execution,
delivery and performance of this Agreement by the Company and the consummation
by the Company of the transactions contemplated hereby in accordance with the
terms hereof will not conflict with, violate or constitute a breach of any
material contract, agreement or instrument by which the Company is bound or any
judgment, order, decree, law, statute, rule, regulation or other judicial or
governmental restriction to which the Company is subject;


 


(d)                                 this Agreement
constitutes the legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except as the enforceability
hereof may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting creditors’ rights generally;


 


(e)                                  the Warrants, when
issued and delivered to the initial Holders as provided in this Agreement, and
the Warrant Shares purchasable upon exercise of the Warrants, when issued, paid
for and delivered as provided in this Agreement, will be validly issued, fully
paid and nonassessable; and


 


(f)                                    the Company shall
at all times reserve out of its authorized shares of Common Stock a number of
shares of Common Stock sufficient for the exercise of all outstanding Warrants.


 


ARTICLE 7.


 


MISCELLANEOUS


 


SECTION 7.1.  Agreements Respecting Warrants;
Impairment.  The Company will not
enter into any agreement or instrument, which would preclude the exercise of
the Warrants as herein provided.  The
Company shall not by any action, including, without limitation, amending its
certificate of incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to


 


19

















 


avoid the observance or performance of any of the terms of this
Warrant, but will at all times assist in the carrying out of all such terms and
in the taking of all such actions as may be necessary or appropriate to protect
the rights of the Holders against impairment.


 


SECTION 7.2.  SEC Reports.  If and/or when the Company shall become a
reporting company under the Exchange Act (but only for so long as it shall
continue to be a reporting company), the Company shall file its annual and
quarterly reports and other information, documents and other reports (or copies
of such portions of any of the foregoing as the SEC may by rules and regulations
prescribe) which the Company is required to file with the SEC pursuant to
Section 13 or 15(d) of the Exchange Act.


 


SECTION 7.3.  Persons Benefiting.  Nothing in this Agreement is intended or
shall be construed to confer upon any Person other than the Company, the
Warrant Agent and the Holders any right, remedy or claim under or by reason of
this Agreement or any part hereof.


 


SECTION 7.4.  Rights of Holders.  Except as otherwise specifically required
herein, holders of unexercised Warrants are not entitled (a) to receive
dividends or other distributions, (b) to receive notice of or vote at any
meeting of the stockholders, (c) to consent to any action of the stockholders,
(d) to receive notice of any other proceedings of the Company or (e) to
exercise any other rights as stockholders of the Company.


 


SECTION 7.5.  Amendment.  This Agreement may be amended by the parties hereto without the
consent of any Holder for the purpose of curing any ambiguity, or of curing,
correcting or supplementing any defective provision contained herein or making
any other provisions with respect to matters or questions arising under this
Agreement as the Company and the Warrant Agent may deem necessary or desirable;
provided, however, that such action shall not affect adversely the rights of
the Holders in any material respect. 
Any amendment or supplement to this Agreement (including any Exhibit
hereto) that has or would have an adverse effect in any material respect on the
interests of the Holders shall require the written consent of the Holders of a
majority of the outstanding Warrants. 
The consent of each Holder affected shall be required for any amendment
pursuant to which the Exercise Price would be increased or the number of Warrant
Shares purchasable upon exercise of Warrants would be decreased (other than
pursuant to any adjustments pursuant to Article 4 hereof).  In determining whether the Holders of the
required number of Warrants have concurred in any direction, waiver or consent,
Warrants owned by the Company or by any Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
the Company shall be disregarded and deemed not to be outstanding, except that,
for the purpose of determining whether the Warrant Agent shall be protected in
relying on any such direction, waiver or consent, only Warrants which the
Warrant Agent knows are so owned shall be so disregarded.  Also, subject to the foregoing, only
Warrants outstanding at the time shall be considered in any such determination.


 


20

















 


SECTION 7.6.  Notices.  Any notice or communication shall be in writing and delivered
either in person, overnight mail, via telecopy with machine generated receipt
confirmation, or mailed by first-class mail addressed as follows:


 


	
  if to the Company:

  	
  Superior Essex Inc.

  
	
   

  	
  150 Interstate North Parkway

  
	
   

  	
  Suite 300

  
	
   

  	
  Atlanta, GA 30336

  
	
   

  	
  Attention: 
  Chief Financial Officer

  
	
   

  	
  Telecopy: 
  (770) 302-8892

  
	
   

  	
   

  
	
  with a copy to:

  	
  Proskauer Rose LLP

  
	
   

  	
  1585 Broadway

  
	
   

  	
  New York, NY 10036-8299

  
	
   

  	
  Attention: 
  Ronald R. Papa, Esq.

  
	
   

  	
  Telecopy: 
  (212) 969-2900

  
	
   

  	
   

  
	
  if to the Warrant Agent:

  
	
   

  
	
   

  	
  American Stock Transfer & Trust Company

  
	
   

  	
  59 Maiden Lane

  
	
   

  	
  Plaza Level

  
	
   

  	
  New York, NY 10038

  
	
   

  	
  Attention: 
  Herb Lemmer

  
	
   

  	
  Telecopy:  (718) 331-1852

  
	
   

  	
   

  



 


The Company or
the Warrant Agent by notice to the other may designate additional or different
addresses for subsequent notices or communications.


 


Any notice or
communication mailed to a Holder shall be mailed to the Holder at the Holder’s
address as it appears on the Certificate Register and shall be sufficiently
given if so mailed within the time prescribed.


 


Failure to
mail a notice or communication to a Holder or any defect in it shall not affect
its sufficiency with respect to other Holders. 
If a notice or communication is provided in the manner stipulated above,
it is duly given, whether or not the addressee receives it.


 


SECTION 7.7.  GOVERNING LAW.  THIS AGREEMENT AND THE WARRANT CERTIFICATES
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK.


 


SECTION 7.8.  Successors.  All agreements of the Company in this Agreement and the Warrant
Certificates shall bind its successors. 
All agreements of the Warrant Agent in this Agreement shall bind its successors.


 


SECTION 7.9.  Counterparts.  This Agreement may be executed in any number
of counterparts and each of such counterparts shall for all purposes be deemed
to be an original, and all such counterparts shall together constitute but one
and the same instrument.


 


21

















 


SECTION 7.10.  Headings.  The headings of the Articles and Sections of this Agreement have
been inserted for convenience of reference only, are not intended to be
considered a part hereof and shall not modify or restrict any of the terms or
provisions hereof.


 


SECTION 7.11.  Severability.  The provisions of this Agreement are
severable, and if any clause or provision shall be held invalid, illegal or
unenforceable in whole or in part in any jurisdiction, then such invalidity or
unenforceability shall affect in that jurisdiction only such clause or
provision, or part thereof, and shall not in any manner affect such clause or
provision in any other jurisdiction or any other clause or provision of this
Agreement in any jurisdiction.


 


SECTION 7.12.  Beneficiaries of this Agreement.  Nothing in this Agreement shall be construed
to give to any person or corporation other than the Company, the Warrant Agent
and the registered holders of the Warrant Certificates any legal or equitable
right, remedy or claim under this Agreement, and this Agreement shall be for
the sole and exclusive benefit of the Company, the Warrant Agent and the
registered holders of the Warrant Certificates.


 


SECTION 7.13.  Termination.  This Agreement shall terminate on the
Expiration Date.  Notwithstanding the
foregoing, this Agreement will terminate on any earlier date when all Warrants
have been exercised.  The provisions of
Article 5 shall survive such termination.


 


[THE REMAINDER OF THIS PAGE IS INTENTIONALLY
LEFT BLANK]


 


22

















 


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


 


 


	
   

  	
  SUPERIOR
  ESSEX INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ David S. Aldridge

  	
   

  
	
   

  	
   

  	
  Name: David
  S. Aldridge

  	
   

  
	
   

  	
   

  	
  Title: Vice
  President

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  AMERICAN
  STOCK TRANSFER & TRUST

  COMPANY,

  as Warrant Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Herbert J. Lemmer

  	
   

  
	
   

  	
   

  	
  Name:
  Herbert J. Lemmer

  	
   

  
	
   

  	
   

  	
  Title: Vice
  President

  	
   

  



 


23

















 


EXHIBIT A


 


FORM OF FACE
OF WARRANT CERTIFICATE


 


VOID AFTER MAY
     , 2006


 


THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND ANY SECURITIES
ACQUIRED UPON THE EXERCISE OF THE WARRANTS HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAW AND ARE SUBJECT
TO A WARRANT AGREEMENT BETWEEN SUPERIOR ESSEX INC. (THE “COMPANY”) AND AMERICAN
STOCK TRANSFER & TRUST COMPANY, AS WARRANT AGENT, COPIES OF WHICH ARE ON
FILE WITH THE SECRETARY OF THE COMPANY. 
NO DIRECT OR INDIRECT TRANSFER, SALE, OFFER, ASSIGNMENT, EXCHANGE,
DISTRIBUTION, MORTGAGE, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION OF THE
WARRANTS REPRESENTED BY THIS CERTIFICATE AND ANY SECURITIES ACQUIRED UPON THE
EXERCISE OF THE WARRANTS MAY BE MADE EXCEPT IN ACCORDANCE WITH THE PROVISIONS
OF SUCH WARRANT AGREEMENT AND (A) PURSUANT TO A REGISTRATION STATEMENT
EFFECTIVE UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) IF THE COMPANY
HAS BEEN FURNISHED WITH AN OPINION REASONABLY SATISFACTORY IN FORM AND
SUBSTANCE TO THE COMPANY OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT
SUCH TRANSFER, SALE, OFFER, ASSIGNMENT, EXCHANGE, DISTRIBUTION, MORTGAGE,
PLEDGE, HYPOTHECATION OR OTHER DISPOSITION IS EXEMPT FROM THE PROVISIONS OF
SECTION 5 OF THE SECURITIES ACT OF 1933, AS AMENDED, AND THE RULES AND
REGULATIONS THEREUNDER.  THE HOLDER OF
THIS CERTIFICATE, BY ACCEPTANCE OF THIS CERTIFICATE, AGREES TO BE BOUND BY ALL
OF THE PROVISIONS OF THE WARRANT AGREEMENT, INCLUDING RESTRICTIONS (IF ANY)
RELATING TO THE EXERCISE OF ANY VOTING RIGHTS GRANTED BY THE SECURITIES.”


 




	
  No.   

  	
   

  	
  Certificate
  for             Warrants

  






 


WARRANTS TO
PURCHASE COMMON STOCK OF

SUPERIOR ESSEX INC.


 


THIS CERTIFIES
THAT,
                       ,
or its registered assigns, is the registered holder of the number of Warrants
set forth above (the “Warrants”).  Each
Warrant entitles the holder thereof (the “Holder”), at its option and subject
to the provisions contained herein and in the Agreement referred to below, to
purchase from Superior Essex Inc., a Delaware corporation (the “Company”), one
fully paid and nonassessable share of Common Stock, $.01 par value, of the
Company (the “Common Stock”) at the per share exercise price of $25.00 (the
“Exercise Price”).  This Warrant
Certificate shall terminate and become void as of 5:00 p.m. New York


 


24

















 


City time on May [   ], 2006
(the “Expiration Date”) or upon the exercise hereof as to all the shares of
Common Stock subject hereto.  The number
of shares purchasable upon exercise of the Warrants and the Exercise Price
shall be subject to adjustment from time to time as set forth in the Agreement.


 


This Warrant
Certificate is issued under and in accordance with a Warrant Agreement dated as
of November [  ], 2003 (the
“Agreement”), between the Company and American Stock Transfer & Trust
Company (the “Warrant Agent”, which term includes any successor Warrant Agent
under the Agreement), and is subject to the terms and provisions contained in
the Agreement, all of which terms and provisions the Holder of this Warrant
Certificate consents by acceptance hereof. 
The Agreement is hereby incorporated herein by reference and made a part
hereof.  Reference is hereby made to the
Agreement for a full statement of the respective rights, limitations of rights,
duties and obligations of the Company, the Warrant Agent and the Holders of the
Warrants.  Capitalized terms used but
not defined herein shall have the meanings ascribed thereto in the
Agreement.  A copy of the Agreement may
be obtained for inspection by the Holder hereof upon written request to the
Warrant Agent at American Stock Transfer & Trust Company, 59 Maiden Lane,
Plaza Level, New York, NY 10038.


 


Subject to the
terms of the Agreement, the Warrants may be exercised in whole or in part by
surrender of this Warrant Certificate with the form of election to purchase
Warrant Shares attached hereto duly executed and with the simultaneous payment
of the Exercise Price in cash to the Warrant Agent for the account of the
Company at the office of the Warrant Agent. 
Payment of the Exercise Price shall be made in cash or by certified or
official bank check payable to the order of the Company or by wire transfer of
immediately available funds to an account designated by the Company for such
purpose.


 


As provided in
the Agreement and subject to the terms and conditions therein set forth, the
Warrants shall be exercisable at any time from and after the Plan Effective
Date; provided, however, that no Warrant shall be exercisable after 5:00 p.m.
New York City time on the Expiration Date.


 


The Company
may require payment of a sum sufficient to pay all taxes, assessments or other
governmental charges in connection with the transfer or exchange of the Warrant
Certificates pursuant to Section 2.4 of the Agreement but not transfer
taxes in connection with any exchange or original issuance with respect to
temporary Warrant Certificates, the exercise of the Warrants or the Warrant
Shares (not involving a transfer).


 


Upon any partial
exercise of the Warrants, there shall be countersigned and issued to the Holder
hereof a new Warrant Certificate in respect of the shares of Common Stock as to
which the Warrants shall not have been exercised.  This Warrant Certificate may be exchanged at the office of the
Warrant Agent by presenting this Warrant Certificate properly endorsed with a
request to exchange this Warrant Certificate for other Warrant Certificates
evidencing an equal number of Warrants. 
No fractional Warrant Shares will be issued upon the exercise of the
Warrants, but the Company shall pay an amount in cash equal to the Current
Market Value for one Warrant Share on the Business Day immediately preceding
the date the Warrant is exercised, multiplied by such fraction, computed to the
nearest whole cent.


 


25

















 


The Warrants
do not entitle any holder hereof to any of the rights of a stockholder of the
Company.  All shares of Common Stock
issuable by the Company upon the exercise of the Warrants shall, upon such
issue, be duly and validly issued and fully paid and non-assessable.


 


The holder in
whose name the Warrant Certificate is registered may be deemed and treated by
the Company and the Warrant Agent as the absolute owner of the Warrant
Certificate for all purposes whatsoever and neither the Company nor the Warrant
Agent shall be affected by notice to the contrary.


 


This Warrant
Certificate shall not be valid or obligatory for any purpose until it shall
have been countersigned by the Warrant Agent.


 


 


	
   

  	
  SUPERIOR
  ESSEX INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  
	
  DATED:

  	
   

  
	
   

  	
   

  
	
  Countersigned:

  	
   

  
	
   

  	
   

  
	
  AMERICAN
  STOCK TRANSFER & TRUST COMPANY

  as Warrant Agent,

  	
   

  
	
   

  	
   

  
	
  By

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Authorized
  Signatory

  	
   

  
					



 


26

















 


FORM OF REVERSE
OF WARRANT CERTIFICATE


 


FORM OF
ASSIGNMENT


 


(To be
executed if the Holder desires to transfer Warrants)


 


FOR VALUE RECEIVED,
                                                             hereby
sells, assigns, and transfers unto
                                                                                                                                                                                                                                               (Please
print name and address of transferee) this Warrant Certificate, together with
all right, title, and interest therein, and does hereby irrevocably constitute
and appoint
                          Attorney,
to transfer the within Warrant Certificate on the books of the within-named
Company, with full power of substitution.


 


 


	
   

  	
   

  	
  Dated:

  	
   

  	
  ,

  	
   

  	
   

  
	
  Signature

  	
   

  	
   

  	
   

  
								



 


27

















 


EXHIBIT B


 


FORM OF
ELECTION TO PURCHASE WARRANT SHARES

AT PER SHARE EXERCISE PRICE


 


(TO BE
EXECUTED ONLY UPON EXERCISE OF WARRANTS)


 


SUPERIOR ESSEX
INC.


 


The
undersigned hereby irrevocably elects to exercise
[          ] Warrants at an
exercise price per share (subject to adjustment in accordance with Article 4 of
the Agreement) of $25.00 to acquire the number of shares of Common Stock of Superior
Essex Inc. purchasable upon exercise of such Warrants, on the terms and
conditions specified in the within Warrant Certificate and the Agreement
therein referred to, surrenders this Warrant Certificate and all right, title
and interest therein to American Stock Transfer & Trust Company,  and directs that the shares of Common Stock
deliverable upon the exercise of such Warrants be registered or placed in the
name and at the address specified below and delivered thereto.


 


	
  Dated:

  	
   

  	
  ,

  	
   

  	
   

  



 


 


	
   

  	
   

  
	
   

  	
  (Signature
  of Holder)(1)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  (Street
  Address)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  (City)

  	
  (State)

  	
  (Zip Code)

  



 












(1)           The signature must correspond with the name
as written upon the face of the within Warrant Certificate in every particular,
without alteration or enlargement or any change whatever, and must be
guaranteed by a national bank or trust company or by a member firm of any
national securities exchange.


 


28

















 


Securities
and/or check to be issued to:


 


Please insert
social security or identifying number:

Name:

Street Address:

City, State and Zip Code:


 


Any
unexercised Warrants evidenced by the within Warrant Certificate to be issued
to:


 


Please insert
social security or identifying number:

Name:

Street Address:

City, State and Zip Code:


 


29