Exhibit 10(b)


 


EXECUTION COPY


 




 





 


REGISTRATION RIGHTS AGREEMENT


 


by and among


 


SUPERIOR ESSEX INC.


 


and


 


THE HOLDERS NAMED HEREIN


 












Dated as of November 10, 2003












 




 





 

















 


Table of Contents


 


	
  1.

  	
  Definitions

  	
   

  
	
   

  	
   

  	
   

  
	
  2.

  	
  Initial
  Registration Under the Securities Act

  	
   

  
	
   

  	
  (a)     Registration

  	
   

  
	
   

  	
   

  	
   

  
	
  3.

  	
  Securities Act
  Registration on Request.

  	
   

  
	
   

  	
  (a)     Request

  	
   

  
	
   

  	
  (b)     Shelf Registration

  	
   

  
	
   

  	
   

  	
   

  
	
  4.

  	
  Piggyback
  Registration

  	
   

  
	
   

  	
   

  	
   

  
	
  5.

  	
  Expenses.

  	
   

  
	
   

  	
   

  	
   

  
	
  6.

  	
  General.

  	
   

  
	
   

  	
  (a)     Registration
  of Other Securities

  	
   

  
	
   

  	
  (b)     Registration Statement
  Form

  	
   

  
	
   

  	
  (c)     Effective
  Registration Statement

  	
   

  
	
   

  	
  (d)     Selection of
  Underwriters

  	
   

  
	
   

  	
  (e)     Priority
  in Requested Registration

  	
   

  
	
   

  	
  (f)      Registration
  Procedures

  	
   

  
	
   

  	
   

  	
   

  
	
  7.

  	
  Underwritten
  Offerings

  	
   

  
	
   

  	
  (a)     Requested
  Underwritten Offerings

  	
   

  
	
   

  	
  (b)     Piggyback
  Underwritten Offerings: Priority

  	
   

  
	
   

  	
  (c)     Holders
  of Registrable Common Stock to be Parties to Underwriting Agreement

  	
   

  
	
   

  	
  (d)     Holdback
  Agreements

  	
   

  
	
   

  	
   

  	
   

  
	
  8.

  	
  Preparation: Reasonable
  Investigation

  	
   

  
	
   

  	
  (a)     Registration
  Statements

  	
   

  
	
   

  	
  (b)     Confidentiality

  	
   

  
	
   

  	
   

  	
   

  
	
  9.

  	
  Postponements

  	
   

  
	
   

  	
   

  	
   

  
	
  10.

  	
  Indemnification

  	
   

  
	
   

  	
  (a)     Indemnification by the
  Company

  	
   

  
	
   

  	
  (b)     Indemnification
  by the Offerors and Sellers

  	
   

  
	
   

  	
  (c)     Notices
  of Losses, etc.

  	
   

  
	
   

  	
  (d)     Contribution

  	
   

  
	
   

  	
  (e)     Other
  Indemnification

  	
   

  
	
   

  	
  (f)      Indemnification
  Payments

  	
   

  
	
   

  	
   

  	
   

  
	
  11.

  	
  Registration Rights to
  Others

  	
   

  



 


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  12.

  	
  Adjustments
  Affecting Registrable Common Stock

  	
   

  
	
   

  	
   

  	
   

  
	
  13.

  	
  Rule
  144 and Rule 144A

  	
   

  
	
   

  	
   

  	
   

  
	
  14.

  	
  Amendments
  and Waivers

  	
   

  
	
   

  	
   

  	
   

  
	
  15.

  	
  Nominees for Beneficial
  Owners

  	
   

  
	
   

  	
   

  	
   

  
	
  16.

  	
  Assignment

  	
   

  
	
   

  	
   

  	
   

  
	
  17.

  	
  Calculation
  of Percentage or Number of Shares of Registrable Common Stock

  	
   

  
	
   

  	
   

  	
   

  
	
  18.

  	
  Termination of
  Registration Rights

  	
   

  
	
   

  	
   

  	
   

  
	
  19.

  	
  Miscellaneous.

  	
   

  
	
   

  	
  (a)     Further
  Assurances

  	
   

  
	
   

  	
  (b)     Headings

  	
   

  
	
   

  	
  (c)     Remedies

  	
   

  
	
   

  	
  (d)     Entire Agreement

  	
   

  
	
   

  	
  (e)     Notices

  	
   

  
	
   

  	
  (f)      Governing Law

  	
   

  
	
   

  	
  (g)     Severability

  	
   

  
	
   

  	
  (h)     Counterparts

  	
   

  
	
   

  	
  (i)      Additional Management
  Holders

  	
   

  
	
   

  	
   

  	
   

  
	
  SCHEDULES:

  	
   

  
	
   

  	
   

  
	
  SCHEDULE A – HOLDERS OF REGISTRABLE COMMON
  STOCK

  	
   

  
	
   

  	
   

  
	
  SCHEDULE B – NOTICES

  	
   

  



 


ii

















 


REGISTRATION
RIGHTS AGREEMENT


 


REGISTRATION RIGHTS AGREEMENT, dated as of
November 10, 2003 (this “Agreement”), by and among Superior Essex Inc., a Delaware corporation (the “Company”), and the holders of Registrable
Common Stock (as hereinafter defined) who are listed on Schedule A to this
Agreement (the “Original Holders”), the holders of the Warrants (as
hereinafter defined) and such other Persons who may become a party hereto
pursuant to Section 16 or 19(i) hereof.


 


This Agreement is being entered into in
connection with the acquisition of Common Stock (as hereinafter defined) by (i)
the Original Holders pursuant to the Plan (as hereinafter defined), (ii)
Management Holders (as hereinafter defined) pursuant to any grant of a stock
option and/or award from the Company and (iii) the holders of the Warrants
pursuant to the Warrant Agreement (as hereinafter defined).  Upon
the issuance of the Common Stock pursuant to the Plan, each Original Holder
will own the number of shares of Common Stock specified with respect to such
Original Holder in Schedule A hereto.


 


To induce the Original Holders to vote in
favor of the Plan and to accept the Common Stock under the Plan, the Company is
herewith agreeing to register Registrable Common Stock (as hereinafter defined)
under the Securities Act (as hereinafter defined) and to take certain other
actions with respect to the Registrable Common Stock, subject to the terms and
conditions of such undertaking of this Agreement.


 


In consideration of the premises and the
mutual agreements set forth herein, the parties hereto hereby agree as follows:


 


1.                Definitions. 
Unless otherwise defined herein, capitalized terms used herein and in
the recitals above shall have the following meanings:


 


“Affiliate” of a Person means any
Person that directly, or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with, such other
Person.  For purposes of this
definition, “control” means the ability of one Person to direct the
management and policies of another Person.


 


“Agreement” has the meaning set forth
in the preamble hereto.


 


“Business Day” means any day except a
Saturday, Sunday or other day on which commercial banks in New York City are
authorized or required by law to be closed.


 


“Commission” means the U.S. Securities
and Exchange Commission.


 


“Common Stock” means the shares of
common stock, $.01 par value per share, of the Company, as adjusted to reflect
any merger, consolidation, recapitalization, reclassification, split-up, stock
dividend, rights offering or reverse stock split made, declared or effected with respect
to the Common Stock.


 


“Company”
has the meaning set forth in the preamble hereto.


 


“Company
Indemnitee” has the meaning set forth in Section 10(a) hereof.


 

















 


“Effective Date” means the effective
date of the Plan pursuant to the terms thereof.


 


“Exchange Act” means the Securities
Exchange Act of 1934, as amended, and the rules and regulations thereunder, or
any similar or successor statute.


 


“Expenses” means all expenses incident
to the Company’s performance of or compliance with its obligations under this
Agreement, including, without limitation, all registration, filing, listing,
stock exchange and NASD fees (including, without limitation, all fees and
expenses of any “qualified independent underwriter” required by the rules of
the NASD), all fees and expenses of complying with state securities or blue sky
laws (including the reasonable fees, disbursements and other charges of counsel
for the underwriters in connection with blue sky filings), all word processing,
duplicating and printing expenses, messenger, telephone and delivery expenses,
all rating agency fees, the fees, disbursements and other charges of counsel
for the Company and of its independent public accountants, including the
expenses incurred in connection with “cold comfort” letters required by or
incident to such performance and compliance, the fees and expenses incurred in
connection with the listing of the securities to be registered on each
securities exchange or national market system on which similar securities
issued by the Company are then listed (if any) the reasonable fees,
disbursements and other charges of one firm of counsel (per registration
statement prepared in accordance with the terms hereof) to the holders of
Registrable Common Stock selling shares of such stock under such registration
statement pursuant to Section 2, Section 3(a), Section 3(b) or Section 4 hereof
(selected by the Holders holding a majority of the shares of Registrable Common
Stock covered by such registration), the fees and expenses of any special experts retained by the Company
in connection with such registration, and the fees and expenses of other
persons retained by the Company, but excluding underwriting discounts
and commissions and applicable transfer taxes, if any, which discounts,
commissions and transfer taxes shall be borne by the seller or sellers of
Registrable Common Stock in all cases; provided, that, if the
Company shall, in accordance with Section 4 or Section 9 hereof, not register
any securities with respect to which it had given written notice of its
intention to register to holders of Registrable Common Stock, notwithstanding
anything to the contrary in the foregoing, all reasonable out-of-pocket
expenses incurred by Requesting Holders in connection with such registration
(other than the reasonable fees, disbursements and other charges of counsel
other than the one firm of counsel referred to above), if any, shall be deemed
to be Expenses.


 


“Holders” means the Original Holders,
the Warrant Stock Holders and such other Persons who may become party hereto
pursuant to Section 16 or 19(i) hereof.


 


“Holder Indemnitee” has the meaning
set forth in Section 10(b) hereof.


 


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


 


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


 


“Initiating Request” has the meaning
set forth in Section 3(a) hereof.


 


“Loss” and “Losses” have the
meanings set forth in Section 10(a) hereof.


 


2

















 


“Management Holders” means Holders of
Registrable Common Stock who are directors or officers of the Company.


 


“NASD” means the National Association of
Securities Dealers, Inc.


 


“NASDAQ” means the National
Association of Securities Dealers, Inc. Automated Quotation System.


 


“Offering Documents” has the meaning
set forth in Section 10(a) hereof.


 


“Original Holders” has the meaning set
forth in the preamble hereto.


 


“Person” means any individual,
corporation, limited liability company, partnership, firm, joint venture,
association, joint stock company, trust, unincorporated organization,
governmental or regulatory body or subdivision thereof or other entity.


 


“Piggyback Requesting Holder” has the
meaning set forth in Section 4 hereof.


 


“Plan” means the Joint Plan of
Reorganization under Chapter 11 of the United States Bankruptcy Code for
Superior Telecom Inc. and certain of its domestic subsidiaries, as the same may
be amended, modified or supplemented from time to time in accordance with the
terms thereof.


 


“Public Offering” means a public
offering and sale of Common Stock pursuant to an effective registration
statement under the Securities Act.


 


“Registrable Common Stock” means any
of the Common Stock issued (i) pursuant to the Plan and owned by the Holders
from time to time, (ii) to a Management Holder from time to time or (iii)
pursuant to the exercise of Warrants from time to time, provided,
however, that a share of Common Stock will cease to be Registrable Common Stock
after it has been sold under a registration statement effected pursuant hereto
(or, in the case of a Management Holder, a registration statement on Form S-8)
or pursuant to Rule 144 promulgated under the Securities Act or has otherwise
been Transferred without a valid assignment by the Transferor to the Transferee
of the rights and obligations hereunder pursuant to Section 16 hereof.


 


“Requesting
Holders” means one or more Holders which, together with their Affiliates,
collectively beneficially own at least 15% of the outstanding shares of Common
Stock.


 


“Securities Act” means the Securities
Act of 1933, as amended, and the rules and regulations thereunder, or any
similar or successor statute.


 


“Selling Holders” means the holders of
Registrable Common Stock that have requested that some or all of their shares
be registered pursuant hereto.


 


“Shelf Registration” has the meaning
set forth in Section 3(b) hereof.


 


3

















 


“Shelf Registration Statement” has the
meaning set forth in Section 3(b) hereof.


 


“Shelf Request Date” has the meaning
set forth in Section 3(b) hereof.


 


“Transfer” means any transfer, sale,
assignment, pledge, hypothecation or other disposition of any interest.  “Transferor” and “Transferee” have
correlative meanings.


 


“Warrant
Agreement” means the Warrant Agreement, dated as of November __, 2003,
between the Company and American Stock Transfer & Trust Company, as the
Warrant Agent.


 


“Warrant
Stock Holders” means Holders of Registrable Common Stock issued upon
exercise of Warrants, in their capacity as such.


 


“Warrants”
means warrants issued pursuant to the Plan that are exercisable for Common
Stock.


 


2.                Initial Registration Under the Securities
Act.


 


(a)  Registration.  The Company shall use its reasonable best
efforts to file and have declared effective by the Commission, as promptly as
practicable after the Company’s registration statement on Form 10 becomes
effective under the Exchange Act (but in no event more than 30 days
thereafter), which registration statement on Form 10 shall be filed with the
Commission as promptly as practicable after the Effective Date (but in no event
more than 30 days thereafter), a shelf registration statement on Form S-1
pursuant to Rule 415 promulgated under the Securities Act (the “Initial
Registration Statement”) providing for the sale by the Holders of all of
the Registrable Common Stock.  The
Company agrees to use its reasonable best efforts to have such Form 10 declared
effective as promptly as practicable after it is filed.  Subject to Section 9(b), the Company agrees
to use its reasonable best efforts to keep the Initial Registration Statement
continuously current and effective until the third anniversary of the date such
Initial Registration Statement is declared effective by the Commission (plus a
number of Business Days equal to the number of Business Days, if any, that the
Initial Registration Statement is not kept effective after the initial date of
its effectiveness and prior to the third anniversary thereof) or such shorter
period which will terminate when all of the Registrable Common Stock covered by
the Initial Registration Statement has been sold pursuant to the Initial
Registration Statement or such shares of Common Stock covered by the
Registration Statement cease to be Registrable Common Stock (the “Initial
Registration Period”).  As promptly
as practicable after becoming eligible to file a registration statement on Form
S-3 under the Securities Act, the Company shall amend the Initial Registration
Statement utilizing Form S-3.   Holders
may effect underwritten offerings pursuant to the Initial Registration
Statement without reducing the number of registrations that the Company is
required to effect pursuant to Section 3 hereof, provided that at least
180 days must elapse between the initiation of an underwritten offering and the
closing of a prior underwritten offering.


 


3.                Securities Act Registration on
Request.


 


(a)  Request.  At any time and from time to time during the
period commencing 180 days after the expiration of the Initial Registration
Period, the Requesting Holders may make


 


4

















 


a written request (the “Initiating Request”) to the Company for
the registration with the Commission under the Securities Act of all or part of
such Requesting Holders’ Registrable Common Stock, which Initiating Request
shall specify the number of shares to be disposed of by such Requesting Holders
and the proposed plan of distribution therefor.  Upon the receipt of any Initiating Request for registration
pursuant to this Section 3(a), the Company promptly shall notify in writing all
other Holders (including the Management Holders and all holders of Warrants) of
the receipt of such request and will use its reasonable best efforts to effect,
at the earliest practicable date, such registration under the Securities Act,
including a Shelf Registration, if applicable, of


 


(i)                                     the
Registrable Common Stock which the Company has been so requested to register by
such Requesting Holder or Holders, and


 


(ii)                                  all
other Registrable Common Stock which the Company has been requested to register
by any other Holders by written request given to the Company within 30 days
after the giving of written notice by the Company to such other Holders and
holders of Warrants of the Initiating Request,


 


all to the
extent necessary to permit the disposition (in accordance with Section 6(c)
hereof) of the Registrable Common Stock so to be registered; provided, that,


 


(A)  the Company shall not be
required to effect more than a total of four registrations pursuant to this
Section 3(a) (including a Shelf Registration effected pursuant to Section
3(b)),


 


(B)  if the intended method of
distribution is an underwritten Public Offering, the Company shall not be
required to effect such registration pursuant to this Section 3(a) unless such
underwriting shall be conducted on a “firm commitment” basis,


 


(C)  if the Company shall have
previously effected a registration pursuant to this Section 3(a) (including one
registration effected pursuant to Section 3(b)) or shall have previously
effected a registration of which notice has been given to the Holders pursuant
to Section 4 hereof, the Company shall not be required to effect any
registration or file a Registration Statement pursuant to this Section 3(a)
until a period of 180 days shall have elapsed from the date on which the
previous such registration ceased to be effective,


 


(D)  any Holder whose Registrable
Common Stock was to be included in any such registration pursuant to this
Section 3(a), by written notice to the Company, may withdraw such request and,
on receipt of such notice of the withdrawal of such request from Holders
holding a percentage of Registrable Common Stock, such that the Holders that
have not elected to withdraw do not hold, in the aggregate, the requisite
percentage of the Registrable Common Stock to initiate a request under this
Section 3(a), the Company shall not effect such registration,


 


5

















 


(E)  the Company shall not be
required to effect any registration pursuant to this Section 3(a) unless at
least 15% of the shares of Registrable Common Stock outstanding at the time of
such request are to be included in such registration, and


 


(F)  Warrant Stock Holders shall
not be entitled to participate in more than a total of two registrations
pursuant to Section 3(a) (including a Shelf Registration effected pursuant to
Section 3(b)).


 


(b)  Shelf Registration.  One Initiating Request may be made for a
shelf registration statement (a “Shelf Registration Statement”) pursuant
to Rule 415 promulgated under the Securities Act (a “Shelf Registration”)
providing for the sale by the Holders of any or all of the Registrable Common
Stock (the date of such request, the “Shelf Request Date”).  After the Shelf Request Date, the Company
shall (i) use its reasonable best efforts to file, at the earliest practicable
date, such Shelf Registration Statement under the Securities Act and (ii) use
its reasonable best efforts to have such Shelf Registration Statement
thereafter declared effective by the Commission at the earliest practicable
date, but in any event not later than 120 days after the Shelf Request Date or,
if a Shelf Registration Statement is reviewed by the Staff of the Commission,
not later than 180 days after the Shelf Request Date.  Subject to Section 9(b), the Company agrees to use its reasonable
best efforts to keep the Shelf Registration Statement continuously effective
under Rule 415 of the Securities Act until the earliest to occur of (i) the
first anniversary of the date such Shelf Registration Statement initially is
declared effective by the Commission (plus a number of Business Days equal to the
number of Business Days, if any, that the Shelf Registration Statement is not
kept effective after the initial date of its effectiveness and prior to the
first anniversary thereof), (ii) the day after the date on which all of the
Registrable Common Stock covered by the Shelf Registration Statement has been
sold pursuant to the Shelf Registration Statement or (iii) the first date on
which there shall cease to be any Registrable Common Stock.


 


4.                Piggyback Registration.  If the Company, at any time when the Initial
Registration Statement or a Shelf Registration Statement covering all
outstanding shares of Registrable Common Stock is not effective, proposes to
register any of its securities under the Securities Act by registration on any
forms other than Form S-4 or S-8 (or any successor or similar form(s)), whether
or not pursuant to registration rights granted to other holders of its
securities and whether or not for sale for its own account, it shall give
prompt written notice to all of the Holders of the Registrable Common Stock and
all holders of Warrants of its intention to do so and of such Holders’ rights
(if any) under this Section 4, which notice, shall be given at least 30 days
prior to such proposed registration. 
Upon the written request of any Holder that is a holder of Registrable
Common Stock receiving notice of such proposed registration (a “Piggyback
Requesting Holder”) made within 20 days after the receipt of any such
notice (10 days if the Company states in such written notice to the relevant
security holders stating that (i) such registration will be on Form S-3 and
(ii) such shorter period of time is required because of a planned filing date),
which request shall specify the Registrable Common Stock intended to be
disposed of by such Piggyback Requesting Holder and, in the case of an
underwritten offering the minimum offering price per share at which such
Piggyback Requesting Holder is willing to sell its Registrable Common Stock,
the Company shall, subject to Section 7(b) hereof, effect the


 


6

















 


registration under the Securities Act of all Registrable Common Stock
which the Company has been so requested to register by the Piggyback Requesting
Holders thereof; provided, that,


 


(A)  prior to the effective date
of the registration statement filed in connection with such registration
pursuant to this Section 4, promptly following receipt of notification by the
Company from the managing underwriter (if an underwritten offering) of the
price or range of prices at which such securities are proposed to be sold, the
Company shall so advise each Piggyback Requesting Holder of such price, and if
such price is below the minimum price which any Piggyback Requesting Holder
shall have indicated to be acceptable to such Piggyback Requesting Holder, such
Piggyback Requesting Holder shall then have the right irrevocably to withdraw
its request to have its Registrable Common Stock included in such registration
statement, by delivery of written notice of such withdrawal to the Company
within one (1) Business Day of its being notified in writing of such price,
without prejudice to the rights of any holder or holders of Registrable Common
Stock to include Registrable Common Stock in any future registration (or registrations)
pursuant to this Section 4 or to cause such registration to be effected as a
registration under Section 3(a) hereof, as the case may be;


 


(B)  if at any time after giving
written notice of its intention to register any securities and prior to the effective
date of the registration statement filed in connection with such registration,
the Company shall determine for any reason not to register or to delay
registration of all of such securities, the Company may, at its election, give
written notice of such determination to each Piggyback Requesting Holder and
(i) in the case of a determination not to register, shall be relieved of its
obligation to register any Registrable Common Stock in connection with such
registration (but not from any obligation of the Company to pay the Expenses in
connection therewith), without prejudice, however, to the rights of any Holder
to include Registrable Common Stock in any future registration (or
registrations) pursuant to this Section 4 or to cause such registration to be
effected as a registration under Section 3 hereof, as the case may be, and (ii)
in the case of a determination to delay registering, shall be permitted to
delay registering any Registrable Common Stock, for the same period as the
delay in registering such other securities; and


 


(C)  if such registration was
initiated by the Company for its own account and involves an underwritten
offering, each Piggyback Requesting Holder that does not withdraw its request
as provided in Section 4(A) shall sell its Registrable Common Stock on the same
terms and conditions as those that apply to the Company, and the underwriters
of such underwritten offering (including the Registrable Common Stock sold by
each Piggyback Requesting Holder) shall be an underwriter (or underwriters)
selected by the Company in its sole and absolute discretion.


 


No registration effected under this Section 4
shall relieve the Company of its obligation to effect any registration upon
request under Section 3(a) or 3(b) hereof and no


 


7

















 


registration effected pursuant to this Section 4 shall be deemed to
have been effected pursuant to Section 3(a) or 3(b) hereof.


 


Notwithstanding anything in this Agreement to
the contrary, the Company shall have no obligation under this Section 4 to make
any offering of its securities, or to complete an offering of its securities
that it proposes to make, and shall incur no liability to any Holder for its
failure to do so.


 


5.                Expenses.


 


(a)                       The Company
shall pay all Expenses in connection with any registration initiated pursuant
to Section 2, 3 or 4 hereof, whether or not such registration shall become
effective and whether or not all or any portion of the Registrable Common Stock
originally requested to be included in such registration are ultimately
included in such registration.


 


(b)                      Notwithstanding
anything in Section 5(a) to the contrary, the Company shall not be required to
pay for any Expenses of any registration proceeding begun pursuant to Section 2
or 3 if the registration request is subsequently withdrawn at the request of
Holders of a majority of the Registrable Common Stock to be registered (in
which case all participating Holders shall bear such expenses pro rata based
upon the number of shares of Registrable Common Stock that were requested to be
included in the withdrawn registration), unless (i) in the case of a
registration requested under Section 3, the Holders of a majority of the
Registrable Common Stock agree to forfeit their right to one demand registration
pursuant to Section 3 or (ii) such withdrawal was effected in accordance with
Section 9 hereof.


 


6.                General.


 


(a)  Registration
of Other Securities.  Whenever
the Company shall effect a registration pursuant to Section 2 or 3 hereof, no
securities other than (i) Registrable Common Stock and (ii) subject to Section
6(e), Common Stock to be sold by the Company for its own account shall be
included among the securities covered by any such registration pursuant to
Section 3(a) unless the Selling Holders holding not less than a majority of the
shares of Registrable Common Stock to be covered by such registration shall
have consented in writing to the inclusion of such other securities.


 


(b)  Registration
Statement Form.  Registrations
under Section 2 or 3 hereof shall be on such appropriate registration form
prescribed by the Commission under the Securities Act as shall be selected by
the Company and as shall permit the disposition of the Registrable Common Stock
pursuant to an underwritten offering unless the Selling Holders holding at
least a majority of the shares of Registrable Common Stock requested to be
included in such registration statement determine otherwise, in which case
pursuant to the method of disposition determined by such Selling Holders.  The Company agrees to include in any such
registration statement filed pursuant to Section 2 or 3 hereof all information
which the Selling Holders holding a majority of shares of the Registrable
Common Stock covered by such registration statement effected pursuant hereto,
upon advice of counsel, shall reasonably request.  The Company may, if permitted by law, effect any registration
requested under Section 2 or 3 by the filing of a


 


8

















 


registration statement on Form S-3 (or any successor or similar short
form registration statement).


 


(c)  Effective
Registration Statement.  A
registration requested pursuant to Section 2 or 3 hereof shall not be deemed to
have been effected


 


(i)                                     unless
a registration statement with respect thereto has been declared effective by
the Commission and remains effective in compliance with the provisions of the
Securities Act and the laws of any state or other jurisdiction applicable to
the disposition of Registrable Common Stock covered by such registration
statement until such time as all of such Registrable Common Stock has been
disposed of in accordance with the method of disposition set forth in such
registration statement or there shall cease to be any Registrable Common Stock,
provided, that, except with respect to the Initial Registration
or Shelf Registration, such period need not exceed 90 days, and, provided,
further, that with respect to the Initial Registration or Shelf
Registration, such period need not extend beyond the applicable period provided
for in Section 2 or, as the case may be, 3(b) hereof,


 


(ii)                                  if,
after it has become effective, such registration is interfered with by any stop
order, injunction or other order or requirement of the Commission or other
governmental or regulatory agency or court for any reason other than a
violation of applicable law or regulation solely by any Selling Holder and has
not thereafter become effective or


 


(iii)                               if,
in the case of an underwritten offering pursuant to a registration statement
requested under Section 3 (a) hereof, the conditions to closing specified in an
underwriting agreement to which the Company is a party are not satisfied or
waived other than by reason of any breach or failure by any Selling Holder, or
are not otherwise waived.


 


The Holders of Registrable Common Stock to be
included in a registration statement may at any time terminate a request for
registration made pursuant to Section 3(a) in accordance with Section
3(a)(ii)(D).


 


(d)  Selection
of Underwriters.  The underwriter
or underwriters of each underwritten offering, if any, of the Registrable
Common Stock pursuant to a registration statement effected under Section 2 or 3
hereof shall be mutually selected by the Selling Holders owning at least a
majority of the shares of Registrable Common Stock to be registered and the
Company.


 


(e)  Priority
in Requested Registration. 
If a registration under Section 3(a) hereof involves an underwritten
Public Offering or if an underwritten Public Offering is being effected pursuant
to a shelf registration statement, and the managing underwriter of such
underwritten offering shall advise the Company in writing (with a copy to each
Selling Holder requesting that Registrable Common Stock be included in such
underwritten offering) that, in its opinion, the number of shares of
Registrable Common Stock requested to be included in such underwritten offering
exceeds the number of such securities that can be sold in such offering within
a price


 


9

















 


range stated to such managing underwriter by Selling Holders owning at
least a majority of the shares of Registrable Common Stock requested to be
included in such underwritten offering to be acceptable to such Selling
Holders, the Company shall include in such underwritten offering, to the extent
of the number and type of securities which the Company is advised can be sold
in such offering, all Registrable Common Stock requested to be included, pro
rata among the Selling Holders requested to be included in such underwritten
offering on the basis of the number of shares of Registrable Common Stock
requested to be included by all such Selling Holders, and no other shares of
Common Stock, whether to be sold by the Company or any other Person.


 


(f)                                    Registration Procedures.  If and whenever the Company is required to
effect any registration under the Securities Act as provided in Section 2, 3 or
4 hereof, the Company shall, as expeditiously as possible:


 


(i)                                     prepare
and file with the Commission (promptly and, in the case of any registration
pursuant to Section 3(a), in any event on or before the date that is (A) 90
days after the date that an Initiating Request is made in accordance with
Section 3(a) or (B) if, as of such ninetieth day, the Company does not have any
audited financial statements required to be included in the registration
statement, 30 days after the receipt by the Company from its independent public
accountants of such audited financial statements, which the Company shall use
its reasonable best efforts to obtain as promptly as practicable) the requisite
registration statement to effect such registration and thereafter use its
reasonable best efforts to cause such registration statement to become and
remain effective; provided, however, that the Company may
discontinue any registration of its securities that are not shares of
Registrable Common Stock (and, under the circumstances specified in Sections 4
and 9(b) hereof, its securities that are shares of Registrable Common Stock) at
any time prior to the effective date of the registration statement relating
thereto;


 


(ii)                                  prepare
and file with the Commission such amendments and supplements to such
registration statement and the prospectus used in connection therewith as may
be necessary to keep such registration statement effective and to comply with
the provisions of the Securities Act and the Exchange Act with respect to the
disposition of all Registrable Common Stock covered by such registration
statement until such time as all of such Registrable Common Stock has been
disposed of in accordance with the method of disposition set forth in such
registration statement; provided, that, except with respect to
any Initial Registration or Shelf Registration, such period need not extend
beyond 90 days after the effective date of the registration statement; and provided,
further, that with respect to the Initial Registration or Shelf
Registration, such period need not extend beyond the applicable period provided
for in Section 2 or, as the case may be, 3(b) hereof;


 


(iii)                               furnish
to each seller of Registrable Common Stock covered by such registration
statement and their representatives designated pursuant to Section 8(a), if
any, and each underwriter, if any, such number of copies of such drafts and final
conformed versions of such registration statement and of each such amendment
and supplement thereto (in each case including all exhibits and any documents
incorporated


 


10

















 


by reference), such number of copies of such drafts and final versions
of the prospectus contained in such registration statement (including each
preliminary prospectus and any summary prospectus) and any other prospectus
filed under Rule 424 under the Securities Act, in conformity with the
requirements of the Securities Act, and such other documents, including without
limitation notification of whether such registration statement or amendment or
supplement thereto will be reviewed by the Commission or any other regulatory
authority and any oral or written comments on such registration statement or
amendment or supplement thereto delivered to the Company by the Commission or
any other regulatory authority, as the sellers of a majority of the Registrable
Common Stock covered by such registration statement or any underwriter may
reasonably request in writing; provided, that all drafts of such
registration statement or amendment or supplement thereto shall be furnished to
each seller of Registrable Common Stock covered by such registration statement
and their representatives designated pursuant to Section 8(a) whether or not so
requested;


 


(iv)                              use
its reasonable best efforts (i) to register or qualify all Registrable Common
Stock and other securities, if any, covered by such registration statement
under such other securities or blue sky laws of such states or other
jurisdictions of the United States of America as the sellers of a majority of
the Registrable Common Stock covered by such registration statement shall
reasonably request in writing, (ii) to keep such registration or qualification
in effect for so long as such registration statement remains in effect and
(iii) to take any other action that may be necessary or reasonably advisable to
enable such sellers to consummate the disposition in such jurisdictions of the
securities to be sold by such sellers, except that the Company shall not for
any such purpose be required to qualify generally to do business as a foreign
corporation in any jurisdiction wherein it would not but for the requirements
of this Section 6(f)(iv) be obligated to be so qualified, to subject itself to
taxation in such jurisdiction or to consent to general service of process in
any such jurisdiction;


 


(v)                                 use
its reasonable best efforts to cause all Registrable Common Stock and other
securities, if any, covered by such registration statement to be registered
with or approved by such other federal or state governmental agencies or
authorities as may be necessary in the opinion of counsel to the Company and
counsel to the seller or sellers of Registrable Common Stock to enable the
seller or sellers thereof to consummate the disposition of such Registrable
Common Stock;


 


(vi)                              furnish
to each seller of Registrable Common Stock, and each such seller’s
underwriters, if any, a signed


 


(A)                              opinion
of counsel for the Company, dated the effective date of such registration
statement (and, if such registration involves an underwritten offering, dated
the date of the closing under the underwriting agreement and addressed to the
underwriters), reasonably satisfactory (based on the customary form and
substance of opinions of issuers’ counsel customarily given in such an
offering) in form and substance to such Selling Holders holding a majority of
the Registrable Common Stock being sold, and


 


11

















 


(B)                                “cold
comfort” letter, dated the effective date of such registration statement (and,
if such registration involves an underwritten offering, dated the date of the
closing under the underwriting agreement and addressed to the underwriters) and
signed by the independent public accountants who have certified the Company’s
financial statements included or incorporated by reference in such registration
statement, reasonably satisfactory (based on the customary form and substance
of “cold comfort” letters of issuers’ independent public accountant customarily
given in such an offering) in form and substance to Selling Holders holding a
majority of the Registrable Common Stock being sold, in each case, covering
substantially the same matters with respect to such registration statement (and
the prospectus included therein) and, in the case of the accountants’ comfort
letter, with respect to events subsequent to the date of such financial
statements, as are customarily covered in accountants’ comfort letters
delivered to underwriters in underwritten Public Offerings of securities;


 


(vii)                           notify
each seller of Registrable Common Stock and other securities covered by such
registration statement, if any, at any time when a prospectus relating thereto
is required to be delivered under the Securities Act, upon discovery that, or
upon the happening of any event as a result of which, the prospectus included
in such registration statement, as then in effect, includes an untrue statement
of a material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein not misleading in the light
of the circumstances under which they were made, and, at the written request of
any such seller of Registrable Common Stock, promptly prepare and furnish to it
a reasonable number of copies of a supplement to or an amendment of such
prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such securities, such prospectus, as supplemented or amended,
shall not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances under which they were
made;


 


(viii)                        use
its reasonable best efforts to obtain the withdrawal of any order suspending
the effectiveness of a registration statement relating to the Registrable
Common Stock at the earliest possible moment;


 


(ix)                                otherwise
comply with all applicable rules and regulations of the Commission and any
other governmental agency or authority having jurisdiction over the offering,
and make available to its security holders, as soon as reasonably practicable
but in no event later than 60 days following the end of the earnings period, an
earnings statement covering the period of at least 12 months, but not more than
18 months, beginning with the first full calendar month after the effective
date of such registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 promulgated
thereunder, and furnish to each seller of Registrable Common Stock and to the
managing underwriter, if any, at least ten days prior to the filing thereof (or
such shorter period as may be necessary to comply with applicable rules and
regulations or to correct any material misstatement or deficiency) a copy of
any amendment or supplement to such registration statement or prospectus;


 


12

















 


(x)                                   subject
to the Company being able to comply with the listing and other requirements of
a national securities exchange or NASDAQ, use its reasonable best efforts to
cause all Registrable Common Stock covered by a Registration Statement (i) to
be listed on a national securities exchange on which similar securities issued
by the Company are then listed, if the listing of such Registrable Common Stock
is then permitted under the rules of such exchange, or (ii) if the Company is
not required pursuant to clause (i) above to list Registrable Common Stock on a
national securities exchange, use its reasonable best efforts to secure
designation of all Registrable Common Stock as a NASDAQ “national market system
security” within the meaning of Rule 11Aa2-1 of the Commission or, failing
that, to secure NASDAQ authorization for the Registrable Common Stock and,
without limiting the generality of the foregoing, to arrange for at least two
market makers to register with the NASD as such with respect to such
Registrable Common Stock;


 


(xi)                                provide
a transfer agent, registrar and CUSIP number for the Registrable Common Stock
covered by a Registration Statement no later than the effective date thereof;


 


(xii)                             enter
into such agreements (including an underwriting agreement in customary form)
and take such other actions as the Holders holding a majority of the shares of
Registrable Common Stock covered by such registration statement shall
reasonably request in order to expedite or facilitate the disposition of such
Registrable Common Stock, including customary indemnification;


 


(xiii)                          if
requested by the managing underwriter(s) or the Holders holding a majority of
the shares of Registrable Common Stock being sold in connection with an
underwritten offering, subject to applicable law, promptly incorporate in a
prospectus supplement or post-effective amendment such information as the
managing underwriter(s) and the Holders of a majority of the Registrable Common
Stock being sold agree should be included therein relating to the plan of
distribution with respect to such Registrable Common Stock, including without
limitation, information with respect to the number of shares of Registrable
Common Stock being sold to such underwriters, the purchase price being paid
therefor by such underwriters and with respect to any other terms of the
underwritten offering of the Registrable Common Stock to be sold in such
offering; and make all required filings of such prospectus supplement or
post-effective amendment as soon as notified of the matters to be incorporated
in such prospectus supplement or post-effective amendment; and


 


(xiv)                         if
requested by the Selling Holders holding a majority of the shares of
Registrable Common Stock being sold, reasonably cooperate with the Selling
Holders of Registrable Common Stock and the managing underwriter(s), if any, to
facilitate the timely preparation and delivery of certificates representing
Registrable Common Stock to be sold and not bearing any restrictive legends;
and enable such Registrable Common Stock to be in such share amounts and
registered in such names as the managing underwriter(s) or, if none, the
Selling Holders holding a majority of the shares of Registrable Common Stock
being sold, may request at least three Business Days prior to any sale of
Registrable Common Stock to the underwriters.


 


13

















 


As a condition to the obligations of the
Company to complete any registration pursuant to this Agreement with respect to
the Registrable Common Stock of a Holder, such Holder must furnish to the
Company in writing such information regarding itself, the Registrable Common
Stock held by it and the intended methods of disposition of the Registrable
Common Stock held by it as is necessary to effect the registration of such
Holders’ Registrable Common Stock and is requested in writing by the
Company.  At least 20 days prior to the
first anticipated filing date of a Registration Statement for any registration
under this Agreement, the Company will notify in writing each Holder of the
information referred to in the preceding sentence which the Company is
requesting from that Holder whether or not such Holder has elected to have any
of its Registrable Common Stock included in the Registration Statement.  If, within 10 days prior to the anticipated
filing date, the Company has not received the requested information from a
Holder, then the Company may file the Registration Statement without including
Registrable Common Stock of that Holder, if, in the opinion of the Company’s
counsel, such information is required to be included in such Registration
Statement.


 


Each Holder agrees that as of the date that a
final prospectus is made available to it for distribution to prospective
purchasers of Registrable Common Stock it shall cease to distribute copies of
any preliminary prospectus prepared in connection with the offer and sale of
such Registrable Common Stock.  Each
Holder further agrees that, upon receipt of any written notice from the Company
of the happening of any event of the kind described in Section 6(f)(vii), such
Holder shall forthwith discontinue such Holder’s disposition of Registrable
Common Stock pursuant to the registration statement relating to such
Registrable Common Stock until such Holder’s receipt of the copies of the
supplemented or amended prospectus contemplated by Section 6(f)(vii) and, if so
directed by the Company, shall deliver to the Company (at the Company’s
expense) all copies, other than permanent file copies, then in such Holder’s
possession of the prospectus relating to such Registrable Common Stock current
at the time of receipt of such notice. 
If any event of the kind described in Section 6(f)(vii) occurs and such
event is the fault solely of a Holder (or Holders), such Holder (or Holders)
shall pay all Expenses attributable to the preparation, filing and delivery of
any supplemented or amended prospectus contemplated by Section 6(f)(vii).


 


7.                Underwritten Offerings.


 


(a)  Requested
Underwritten Offerings. 
If requested by the underwriters in connection with an underwritten
Public Offering pursuant to a registration under Section 2 or 3 hereof, the
Company shall enter into a firm commitment underwriting agreement with such
underwriters for such offering, such agreement to be reasonably satisfactory in
substance and form to the Company and a majority of the Selling Holders whose
Registered Common Stock is included in such offering, and the underwriters and
to contain such representations and warranties by the Company and the Selling
Holders and such other terms as are customary in agreements of that type,
including, without limitation, indemnification and contribution to the effect
and to the extent provided in Section 10 hereof.


 


(b)  Piggyback Underwritten Offerings:
Priority.


 


(i)                                     If
the Company proposes to register any of its securities under the Securities Act
for its own account as contemplated by Section 4 hereof and such


 


14

















 


securities are to be distributed by or through one or more
underwriters, and if the managing underwriter of such underwritten offering
shall advise the Company in writing (with a copy to the Piggyback Requesting
Holders) that if all the Registrable Common Stock requested to be included in such
registration were so included, in its opinion, the number and type of
securities proposed to be included in such registration would exceed the number
and type of securities which could be sold in such offering within a price
range acceptable to the Company (such writing to state the basis of such
opinion and the approximate number and type of securities which may be included
in such offering without such effect), then the Company shall include in such
registration pursuant to Section 4, to the extent of the number and type of
securities which the Company is so advised can be sold in such offering, (i)
first, securities that the Company proposes to issue and sell for its own
account, (ii) second, pro  rata among holders of registration
rights, if any, other than holders of Registrable Common Stock and all
Piggyback Requesting Holders (excluding Warrant Stock Holders) on the basis of
the number of securities requested to be registered by such other Holders
having registration rights and by the number of shares of Registrable Common
Stock (other than shares held by Warrant Stock Holders) requested to be
registered by all such holders of registration rights and all Piggyback
Requesting Holders (excluding Warrant Stock Holders), (iii) third, pro  rata
among Warrant Stock Holders on the basis of the number of shares of Registrable
Common Stock properly requested to be registered by such Warrant Stock Holders
and (iv) fourth, other securities, if any.


 


(ii)                                  In
the case of any other registration contemplated by Section 4 involving an
underwritten Public Offering, if the managing underwriter of such underwritten
offering shall advise the Company in writing (with a copy to the Piggyback
Requesting Holders) that if all Registrable Common Stock requested to be
included in such registration were so included, in its opinion, the number and
type of securities proposed to be included in such registration would exceed
the number and type of securities which would be sold in such offering within a
price range stated to such managing underwriter by Selling Holders owning at
least a majority of the shares of Registrable Common Stock requested to be
included in such registration to be acceptable to such Selling Holders (such
writing to state the basis of such opinion and the approximate number and type
of securities which may be included in such offering without such effect), then
the Company shall include in such registration pursuant to Section 4, to the
extent of the number and type of securities which the Company is so advised can
be sold in such offering, (i) first, pro  rata among Piggyback
Requesting Holders (excluding Warrant Stock Holders) on the basis of the number
of shares of Registrable Common Stock requested to be registered by all such
Piggyback Requesting Holders, (ii) second, pro  rata among Warrant
Stock Holders on the basis of the number of shares of Registrable Common Stock
properly requested to be registered by such Warrant Stock Holders, (iii) third,
securities that the Company proposed to issue and sell for its own account and
(iv) fourth, other securities.


 


Any Holder may withdraw its request to have
all or any portion of its Registrable Common Stock included in any such
offering by notice to the Company within 10 Business Days after receipt of a
copy of a notice from the managing underwriter pursuant to this Section 7(b).


 


15

















 


(c)  Holders
of Registrable Common Stock to be Parties to Underwriting Agreement.  The holders of Registrable Common Stock to
be distributed by underwriters in an underwritten offering contemplated by
Section 7(a) or (b) shall be parties to the underwriting agreement between the
Company and such underwriters and any such Holder, at its option, may
reasonably require that any or all of the representations and warranties by,
and the other agreements on the part of, the Company to and for the benefit of
such underwriters shall also be made to and for the benefit of such Holders and
that any or all of the conditions precedent to the obligations of such
underwriters under such underwriting agreement be conditions precedent to the
obligations of such Holders.  No such
Holder shall be required to make any representations or warranties to or
agreements with the Company or the underwriters other than representations,
warranties or agreements regarding such Holder, such Holder’s Registrable
Common Stock and such Holder’s intended method of distribution; provided
that any liability of such Holder shall be limited to the proceeds received
from such distribution in accordance with Section 10(b) or (d) hereof.


 


(d)  Holdback
Agreements.  Each Holder agrees,
unless otherwise agreed to by the managing underwriter for any underwritten
offering pursuant to this Agreement, not to effect any sale or distribution of
any equity securities of the Company or securities convertible into or
exchangeable or exercisable for equity securities of the Company, including any
sale under Rule 144 under the Securities Act, during the 10 days prior to the
date on which an underwritten registration of Registrable Common Stock pursuant
to Section 2, 3 or 4 hereof has become effective and until 180 days after the
effective date of such underwritten registration, except as part of such
underwritten registration or to the extent that such Holder is prohibited by
applicable law from agreeing to withhold securities from sale or is acting in
its capacity as a fiduciary or an investment adviser.  Without limiting the scope of the term “fiduciary,” a holder
shall be deemed to be acting as a fiduciary or an investment adviser if its
actions or the securities proposed to be sold are subject to the Employee
Retirement Income Security Act of 1974, as amended, the Investment Company Act
of 1940, as amended, or the Investment Advisers Act of 1940, as amended, or if
such securities are held in a separate account under applicable insurance law
or regulation.


 


The Company agrees (i) not to effect any
Public Offering or distribution of any equity securities of the Company, or
securities convertible into or exchangeable or exercisable for equity
securities of the Company, during the 10 days prior to the date on which any
underwritten registration pursuant to Section 2, 3(a), 3(b) or 4 hereof has
become effective and until 180 days after the effective date of such
underwritten registration, except as part of such underwritten registration,
and (ii) to cause each holder of any equity securities, or securities
convertible into or exchangeable or exercisable for equity securities, in each
case, acquired from the Company at any time on or after the date of this
Agreement (other than in a Public Offering), to agree not to effect any Public
Offering or distribution of such securities, during such period.


 


8.                Preparation: Reasonable Investigation.


 


(a)  Registration
Statements.  In connection with
the preparation and filing of each registration statement under the Securities
Act pursuant to this Agreement, the Company shall (i) give representatives
(designated to the Company in writing) of each Holder or group of Holders
holding at least 10% of the shares of Registrable Common Stock registered under
such


 


16

















 


registration statement, the underwriters, if any, and one firm of
counsel, one firm of accountants and one firm of other agents retained on
behalf of all underwriters and one firm of counsel, one firm of accountants and
one firm of other agents retained on behalf of Holders holding a majority of
the shares of Registrable Common Stock covered by such registration statement,
the reasonable opportunity to participate in the preparation of such
registration statement, each prospectus included therein or filed with the
Commission, and each amendment thereof or supplement thereto, (ii) upon
reasonable advance notice to the Company, give each of them such reasonable
access to all financial and other records, corporate documents and properties
of the Company and its subsidiaries, as shall be necessary, in the reasonable
opinion of such Holders’ and such underwriters’ counsel, to conduct a
reasonable due diligence investigation for purposes of the Securities Act, and
(iii) upon reasonable advance notice to the Company, provide such reasonable
opportunities to discuss the business of the Company with its officers,
directors, employees and the independent public accountants who have certified
its financial statements as shall be necessary, in the reasonable opinion of
such Holders’ and such underwriters’ counsel, to conduct a reasonable due
diligence investigation for purposes of the Securities Act.


 


(b)  Confidentiality.  Each Holder of Registrable Common Stock
shall maintain, and shall cause its agents referred to in Section 8(a) to
maintain, the confidentiality of any confidential information received from or
otherwise made available by the Company to such Holder of Registrable Common
Stock.  Information that (i) is or
becomes available to a Holder of Registrable Common Stock from a public source
other than as a result of a disclosure by such Holder or any of its Affiliates,
(ii) is disclosed to a Holder of Registrable Common Stock by a third-party
source who the Holder of Registrable Common Stock reasonably believes is not
bound by an obligation of confidentiality to the Company or (iii) is or becomes
required to be disclosed by a Holder of Registrable Common Stock by law,
including by court order, shall not be deemed to be confidential information
for purposes of this Agreement.  The
Holders of Registrable Common Stock shall not grant access, and the Company
shall not be required to grant access, to information under this Section 8 to
any Person who will not agree to maintain the confidentiality (to the same
extent a Holder is required to maintain confidentiality) of any confidential
information received from or otherwise made available to it by the Company or
the holders of Registrable Common Stock under this Agreement.


 


9.                Postponements.


 


(a)  If the Company shall fail to file or delay
filing for more than 90 days after receipt of any Initiating Request any
registration statement to be filed pursuant to a request for registration under
Section 3 hereof (whether or not pursuant to Section 9(b)), the Holders
requesting such registration shall have the right to withdraw the request for
registration if such withdrawal shall be made by Holders of Common Stock
holding an amount of Common Stock such that the Holders that have not elected
to withdraw do not hold the requisite percentage of shares of Common Stock to
initiate a request under Section 3.  Any
such withdrawal shall be made by giving written notice to the Company within 20
days after, in the case of a request pursuant to Section 3 hereof, the date on
which a registration statement would otherwise have been required to have been
filed with the Commission under clause (A) of Section 6(f)(i) hereof (i.e.,
20 days after the date that is 90 days after the conclusion of the period
within which requests for registration may be given to the Company, or, if, as
of such ninetieth day, the Company does not have the audited financial
statements required to be included in the


 


17

















 


registration statement, 30 days after the receipt by the Company from
its independent public accountants of such audited financial statements).  In the event of such withdrawal, the request
for registration shall not be counted for purposes of determining the number of
registrations to which Holders are entitled pursuant to Section 3 hereof.


 


(b)  The Company shall not be obligated to file
any registration statement, or file any amendment or supplement to any
registration statement, and may suspend any Selling Holder’s rights to make
sales pursuant to any effective registration statement, at any time (but not to
exceed one time in any 12 month period) when the Company, in the good faith
judgment of its Board of Directors, reasonably believes that the filing thereof
at the time requested, or the offering of securities pursuant thereto, would
adversely affect a pending or proposed Public Offering of the Company’s
securities, a material financing, or a material acquisition, merger,
recapitalization, consolidation, reorganization or similar transaction, or
negotiations, discussions or pending proposals with respect thereto or would
require the disclosure of material non-public information that, in the good
faith judgment of the Board of Directors, individually or in the aggregate,
would have a material adverse effect on the Company and its subsidiaries taken
as a whole.  The filing of a registration
statement, or any amendment or supplement thereto, by the Company cannot be
deferred, and the Selling Holders’ rights to make sales pursuant to an
effective registration statement cannot be suspended, pursuant to the
provisions of the preceding sentence for more than 10 days after the abandonment
or consummation of any of the foregoing proposals or transactions or for more
than 90 days after the date of the Board’s determination referenced in the
preceding sentence.  If the Company
suspends the sellers’ rights to make sales pursuant hereto, the applicable
registration period shall be extended by the same number of days of such
suspension.


 


10.          Indemnification.


 


(a)  Indemnification
by the Company.  In connection
with any registration statement filed by the Company pursuant to Section 2, 3 or
4 hereof, to the fullest extent permitted by law the Company shall, and hereby
agrees to, indemnify and hold harmless, each Holder of any Registrable Common
Stock covered by such registration statement and each other Person, if any, who
controls (within the meaning of the Exchange Act) such Holder, and their
respective stockholders, directors, officers, employees, partners, agents and
Affiliates (each, a “Company Indemnitee” for purposes of this Section
10(a)), against any losses, claims, damages, liabilities (or actions or
proceedings, whether commenced or threatened, in respect thereof and whether or
not such Indemnified Party is a party thereto), joint or several, and expenses,
including, without limitation, the reasonable fees, disbursements and other charges
of legal counsel and reasonable costs of investigation, to which such Company
Indemnitee may become subject under the Securities Act or otherwise
(collectively, a “Loss” or “Losses”), insofar as such Losses
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in any registration statement under which such
securities were registered or otherwise offered or sold under the Securities
Act or otherwise, any preliminary prospectus, final prospectus or summary
prospectus related thereto, or any amendment or supplement thereto
(collectively, “Offering Documents”), or any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein in the light of the circumstances in
which they were made not misleading, or any violation by the Company of any
federal or state law, rule or regulation applicable to the Company and relating
to action


 


18

















 


required of or inaction by the Company in connection with any such
registration; provided, that, the Company shall not be liable in any
such case to the extent that any such Loss arises out of or is based upon an
untrue statement or omission made in such Offering Documents in reliance upon
and in conformity with information furnished to the Company in a writing duly
executed by a Company Indemnitee specifically stating that it is expressly for
use therein; and provided, further, that the Company shall not be liable to any
Person who participates as an underwriter in the offering or sale of
Registrable Common Stock or any other person, if any, who controls (within the
meaning of the Exchange Act) such underwriter, in any such case to the extent
that any such Loss arises out of such Person’s failure to send or give a copy
of the final prospectus (including any documents incorporated by reference
therein), as the same may be then supplemented or amended, to the Person
asserting an untrue statement or alleged untrue statement or omission or
alleged omission at or prior to the written confirmation of the sale of
Registrable Common Stock to such Person if such statement or omission was
corrected in such final prospectus. 
Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of a Company Indemnitee and shall survive
the transfer of such securities by such Company Indemnitee.


 


(b)  Indemnification
by the Offerors and Sellers. 
In connection with any registration statement filed by the Company
pursuant to Section 2, 3 or 4 hereof in which a Holder has registered for sale
Registrable Common Stock, each such Holder of Registrable Common Stock shall,
and hereby agrees to, indemnify and hold harmless to the fullest extent
permitted by law the Company and each of its directors, officers, employees,
agents, partners, stockholders, Affiliates and each other Person, if any, who
controls (within the meaning of the Exchange Act) the Company and each other
seller under such registration statement and such seller’s employees,
directors, officers, stockholders, partners, agents and Affiliates (each, a “Holder
Indemnitee” for purposes of this Section 10(b)), against all Losses insofar
as such Losses arise out of or are based upon any untrue statement of a
material fact contained in any Offering Documents (or any document incorporated
by reference therein) or any omission to state therein a material fact required
to be stated therein or necessary to make the statements therein in the light
of circumstances in which they were made not misleading, if such untrue
statement or omission was made in reliance upon and in conformity with
information furnished to the Company in a writing duly executed by such Holder
of Registrable Common Stock specifically stating that it is expressly for use
therein; provided, however, that the liability of such
indemnifying party under this Section 10(b) shall be limited to the amount of
the net proceeds received by such indemnifying party in the sale of Registrable
Common Stock giving rise to such liability. 
Such indemnity shall remain in full force and effect, regardless of any
investigation made by or on behalf of a Holder Indemnitee and shall survive the
transfer of such securities by such indemnifying party.


 


(c)  Notices of Losses,
etc.  Promptly after receipt by an
indemnified party of written notice of the commencement of any action or
proceeding involving a Loss referred to in Section 10(a) or (b), such
indemnified party will, if a claim in respect thereof is to be made against an
indemnifying party, give written notice to the latter of the commencement of
such action; provided, however, that the failure of any
indemnified party to give notice as provided herein shall not relieve the
indemnifying party of its obligations under Section 10(a) or (b), except to the
extent that the indemnifying party is materially and actually prejudiced by
such failure to give notice.  In case
any such action is brought against an indemnified party, the


 


19

















 


indemnifying party shall be entitled to participate in and, unless in
such indemnified party’s reasonable judgment, after consultation with its
separate counsel, a conflict of interest between such indemnified and indemnifying
parties may exist in respect of such Loss, to assume and control the defense
thereof, in each case at its own expense, jointly with any other indemnifying
party similarly notified, to the extent that it may wish, with counsel
reasonably satisfactory to such indemnified party, and after its assumption of
the defense thereof, the indemnifying party shall not be liable to such
indemnified party for any legal or other expenses subsequently incurred by the
latter in connection with the defense thereof other than reasonable costs of
investigation, unless in such indemnified party’s reasonable judgment, after
consultation with its separate counsel, a conflict of interest between such
indemnified and indemnifying parties arises in respect of such claim after the
assumption of the defense thereof, in which event the indemnifying party shall
be liable for the legal expenses of one counsel (plus local counsel)
representing the indemnified party or parties. 
No indemnifying party shall be liable for any settlement of any action
or proceeding effected without its written consent, which shall not be
unreasonably withheld.  No indemnifying
party shall, without the consent of the indemnified party, consent to entry of
any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability in respect of such Loss or
which requires action on the part of such indemnified party or otherwise
subjects the indemnified party to any obligation or restriction to which it
would not otherwise be subject.


 


(d)  Contribution.  If the indemnification provided for in this
Section 10 shall for any reason be unavailable to an indemnified party under
Section 10(a) or (b) in respect of any Loss, then, in lieu of the amount paid
or payable under Section 10(a) or (b), the indemnified party and the
indemnifying party under Section 10(a) or (b) shall contribute to the aggregate
Losses (including legal or other expenses reasonably incurred in connection
with investigating the same) (i) in such proportion as is appropriate to
reflect the relative fault of the Company and the prospective sellers of
Registrable Common Stock covered by the registration statement which resulted in
such Loss or action in respect thereof, with respect to the statements,
omissions or action which resulted in such Loss or action in respect thereof,
as well as any other relevant equitable considerations, or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as shall be appropriate to reflect the relative benefits
received by the Company, on the one hand, and such prospective sellers, on the
other hand, from their sale of Registrable Common Stock; provided, that,
for purposes of this clause (ii), the relative benefits received by the
prospective sellers shall be deemed not to exceed the amount received by such
sellers in the sale of their Registrable Common Stock.  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.  The obligations, if
any, of the selling holders of Registrable Common Stock to contribute as
provided in this Section 10(d) are several in proportion to the relative value
of their respective Registrable Common Stock covered by such registration
statement and not joint.  In addition,
no Person shall be obligated to contribute hereunder any amounts in payment for
any settlement of any action or Loss effected without such Person’s consent.


 


(e)  Other
Indemnification.  The Company
and, in connection with the Initial Registration Statement, each Holder,
severally and not jointly, shall, and, in connection with any registration
statement filed by the Company pursuant to Section 3 or 4, each Holder who has


 


20

















 


registered for sale Registrable Common Stock, severally and not
jointly, shall, with respect to any required registration or other
qualification of securities under any Federal or state law or regulation of any
governmental authority other than the Securities Act, indemnify Holder
Indemnitees and Company Indemnitees, respectively, against Losses, or, to the
extent that indemnification shall be unavailable to a Holder Indemnitee or
Company Indemnitee, contribute to the aggregate Losses of such Holder
Indemnitee or Company Indemnitee in a manner similar to that specified in the
preceding subsections of this Section 10 (with appropriate modifications).


 


(f)  Indemnification
Payments.  The indemnification
and contribution required by this Section 10 shall be made by periodic payments
of the amount thereof during the course of any investigation or defense, as and
when any Loss is incurred and is due and payable.


 


11.          Registration Rights to Others.


 


If the Company shall at any time hereafter
provide to any holder of any securities of the Company rights with respect to
the registration of such securities under the Securities Act or the Exchange
Act, such rights shall not be in conflict with or adversely affect any of the
rights provided to the holders of Registrable Common Stock in, or conflict (in
a manner that adversely affects holders of Registrable Common Stock) with any
other provisions included in, this Agreement.


 


12.          Adjustments Affecting Registrable
Common Stock.


 


Without the written consent of Holders of a
majority of the outstanding shares of Registrable Common Stock, the Company shall
not effect or permit to occur any combination, subdivision or reclassification
of Registrable Common Stock that would materially adversely affect the ability
of the Holders to include such Registrable Common Stock in any registration of
its securities under the Securities Act contemplated by this Agreement or the
marketability of such Registrable Common Stock under any such registration or
other offering.


 


13.          Rule 144 and Rule 144A.


 


The Company shall take all actions reasonably
necessary to enable Holders to sell Registrable Common Stock without
registration under the Securities Act within the limitation of the exemptions
provided by (a) Rule 144 under the Securities Act, as such Rule may be amended
from time to time, (b) Rule 144A under the Securities Act, as such Rule may be
amended from time to time, or (c) any similar rules or regulations hereafter
adopted by the Commission, including, without limiting the generality of the
foregoing, filing on a timely basis all reports required to be filed under the
Exchange Act.  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 requirements.


 


14.          Amendments and Waivers.


 


Any provision of this Agreement may be
amended, modified or waived if, but only if, the written consent to such
amendment, modification or waiver has been obtained from (i) except as provided
in clause (ii) below, the Holder or Holders of at least a majority of the
shares of Registrable Common Stock affected by such amendment, modification or
waiver and


 


21

















 


(ii) in the case of any amendment, modification or waiver of any
provision of Section 2, 5, 9 or 10 or any provisions as to the number of
requests for registration to which holders of Registrable Common Stock are
entitled under Section 3 or 4 hereof, or this Section 14, the written consent
of each Holder so affected; provided, however, that the rights of
Warrant Stock Holders cannot be materially adversely affected in a manner
different from Holders of Registrable Common Stock generally without the prior
written consent of the holders of a majority of the shares of Registrable
Common Stock issued and issuable upon the exercise of Warrants.


 


15.          Nominees for Beneficial Owners.


 


Except as provided otherwise below, a person
or entity is deemed to be a holder of Registrable Common Stock whenever such
person or entity owns of record such Registrable Common Stock.  If any Registrable Common Stock is held by a
nominee for the beneficial owner thereof, the beneficial owner thereof may, at
its election in writing delivered to the Company, be treated as the Holder of
such Registrable Common Stock for purposes of any request or other action by
any Holder or Holders pursuant to this Agreement or any determination of the
number or percentage of shares of Registrable Common Stock held by any Holder
or Holders contemplated by this Agreement. 
The Company may require assurances reasonably satisfactory to it of such
owner’s beneficial ownership of such Registrable Common Stock.  If the Company receives conflicting
instructions, notices or elections from two or more persons or entities with
respect to the same Registrable Common Stock, the Company will act upon the
basis of instructions, notice or election received from the registered owner of
such Registrable Common Stock.


 


16.          Assignment.


 


The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective heirs, successors and permitted assigns.  Any Holder may assign to any permitted Transferee (as permitted
under applicable law) of its Registrable Common Stock its rights and
obligations under this Agreement, provided  that after giving
effect to such Transfer, such Transferee shall hold 5% or more of the
outstanding shares of Common Stock or shall be a director or an executive
officer of the Company; and, provided  further, that such
Transferee shall agree in writing with the parties hereto prior to the
assignment to be bound by this Agreement as if it were an original party
hereto, whereupon such assignee shall for all purposes be deemed to be a Holder
(and, in the case of a Transferee of a Management Holder, a Warrant Stock
Holder or a Transferee thereof, a Management Holder or a Warrant Stock Holder,
as the case may be) under this Agreement. 
Except as provided above or otherwise permitted by this Agreement,
neither this Agreement nor any right, remedy, obligation or liability arising hereunder
or by reason hereof shall be assignable by any Holder without the prior written
consent of the other parties hereto. 
The Company may not assign this Agreement or any right, remedy,
obligation or liability arising hereunder or by reason hereof.


 


17.          Calculation of Percentage or Number
of Shares of Registrable Common Stock.  For purposes of this Agreement, all references to a percentage or
number of shares of Registrable Common Stock or Common Stock shall be
calculated based upon the number of shares of Registrable Common Stock or Common
Stock, as the


 


22

















 


case may be, outstanding at the time such calculation is made and shall
exclude any Registrable Common Stock or Common Stock, as the case may be, owned
by the Company or any subsidiary of the Company.  For the purposes of calculating any percentage or number of
shares of Registrable Common Stock or Common Stock as contemplated by the
previous sentence, the terms “Holder”, “Management Holder”, “Warrant
Stock Holder” and “Original Holder” shall include all Affiliates
thereof owning any shares of Registrable Common Stock or Common Stock.


 


18.          Termination of Registration Rights.  The Company’s obligations under Sections 2,
3 and 4 hereof to register Common Stock for sale under the Securities Act shall
terminate on the earlier to occur of (i) the first date on which no shares of
Registrable Common Stock are held by any Original Holder or their permitted
Transferees or (ii) the first date on which (A) no Holder of Common Stock,
together with its Affiliates, holds 5% or more of the outstanding shares of
Common Stock or (B) less than 25% of the aggregate number of shares of Common
Stock issued pursuant to the Plan are held by the Original Holders or their
Affiliates.


 


19.          Miscellaneous.


 


(a)  Further Assurances.  Each of the parties hereto shall execute
such documents and other papers and perform such further acts as may be
reasonably required or advisable to carry out the provisions of this Agreement
and the transactions contemplated hereby.


 


(b)  Headings.  The headings in this Agreement are for
convenience of reference only and shall not control or affect the meaning or
construction of any provisions hereof.


 


(c)  Remedies.  Each Holder, in addition to being entitled
to exercise all rights granted by law, including recovery of damages, will be
entitled to specific performance of its rights under this Agreement.  The Company agrees that monetary damages
would not be adequate compensation for any loss incurred by reason of a breach
by it of the provisions of this Agreement and the Company hereby agrees to
waive the defense in any action for specific performance that a remedy at law
would be adequate.


 


(d)  Entire Agreement.  This Agreement constitutes the entire
agreement and understanding of the parties hereto with respect to the subject
matter hereof, and there are no restrictions, promises, representations,
warranties, covenants or undertakings with respect to the subject matter
hereof, other than those expressly set forth or referred to herein.  This Agreement supersedes all prior
agreements and understandings among the parties hereto with respect to the
subject matter hereof.


 


(e)  Notices.  Any notices or other communications to be
given hereunder by any party to another party shall be in writing, shall be
delivered personally, by telecopy, by certified or registered mail, postage
prepaid, return receipt requested, or by Federal Express or other comparable
delivery service, to the address of the party set forth on Schedule B hereto or
to such other address as the party to whom notice is to be given may provide in
a written notice to the other parties hereto, a copy of which shall be on file
with the Secretary of the Company. 
Notice shall be effective when delivered if given personally, when
receipt is acknowledged if telecopied, three days after mailing if given by
registered or certified mail as described above, and one business day after
deposit if given by Federal Express or comparable delivery service.


 


23

















 


(f)  Governing Law.  This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.


 


(g)  Severability.  Notwithstanding any other provision of this
Agreement, neither the Company nor any other party hereto shall be required to
take any action which would be in violation of any applicable Federal or state
securities law.  The invalidity or
unenforceability of any provision of this Agreement in any jurisdiction shall
not affect the validity, legality or enforceability of any other provision of
this Agreement in such jurisdiction or the validity, legality or enforceability
of this Agreement, including any such provision, in any other jurisdiction, it
being intended that all rights and obligations of the parties hereunder shall
be enforceable to the fullest extent permitted by law.


 


(h)  Counterparts.  This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original but all of which
shall constitute one and the same Agreement.


 


(i)  Additional
Management Holders.  Without any
further action of any of the parties hereto, an officer, director, employee or
consultant of the Company who on or after the date hereof receives a grant of
any stock option and/or stock award from the Company shall execute a
counterpart of this Agreement and thereafter shall be deemed to be a
“Management Holder” for all purposes of this Agreement.


 


24

















 


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


 


	
   

  	
  SUPERIOR
  ESSEX INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MANAGEMENT HOLDERS:

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  HOLDERS OF WARRANTS:

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
				



 


25

















 


SCHEDULE A


 


 


HOLDERS OF REGISTRABLE COMMON STOCK


 


	
  Original Holder

  	
   

  	
   

  	
   

  	
  Number of

  Shares Owned

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Deutsche Bank Investor Group

  	
   

  	
   

  	
   

  	
  562,697

  	
   

  
	
  Deutsche Bank Trust Company Americas

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Deutsche Cayman

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Amex Investor Group

  	
   

  	
   

  	
   

  	
  547,904

  	
   

  
	
  Amex—Centurion CDO I, Ltd.

  	
   

  	
  (18,278

  	
  )

  	
   

  	
   

  
	
  Amex—KZH Cypress Tree-1

  	
   

  	
  (196,613

  	
  )

  	
   

  	
   

  
	
  Amex KZH ING-2 LLC

  	
   

  	
  (130,726

  	
  )

  	
   

  	
   

  
	
  Amex KZH Sterling LLC

  	
   

  	
  (202,287

  	
  )

  	
   

  	
   

  
	
  Silver Oak Capital, LLC

  	
   

  	
   

  	
   

  	
  1,204,542

  	
   

  
	
  AP-ST LLC

  	
   

  	
   

  	
   

  	
  2,477,288

  	
   

  
	
  Babson Investor Group

  	
   

  	
   

  	
   

  	
  423,799

  	
   

  
	
  Babson Apex

  	
   

  	
  (38,070

  	
  )

  	
   

  	
   

  
	
  Babson—ELC

  	
   

  	
  (58,403

  	
  )

  	
   

  	
   

  
	
  Babson—ELC (Cayman) 1999-I

  	
   

  	
  (37,719

  	
  )

  	
   

  	
   

  
	
  Babson—ELC (Cayman) 1999-II

  	
   

  	
  (77,495

  	
  )

  	
   

  	
   

  
	
  Babson—ELC (Cayman) 1999-III

  	
   

  	
  (63,020

  	
  )

  	
   

  	
   

  
	
  Babson—ELC (Cayman) 2000-I

  	
   

  	
  (96,718

  	
  )

  	
   

  	
   

  
	
  Babson—Tryon CLO

  	
   

  	
  (52,374

  	
  )

  	
   

  	
   

  
	
  Bear Stearns Securities Corp.

  	
   

  	
   

  	
   

  	
  480,175

  	
   

  
	
  Castlerigg Master Investments Ltd.

  	
   

  	
   

  	
   

  	
  868,918

  	
   

  
	
  General Electric Investor Group

  	
   

  	
   

  	
   

  	
  2,491,318

  	
   

  
	
  General Electric Capital Corporation

  	
   

  	
  (2,178,201

  	
  )

  	
   

  	
   

  
	
  General Electric Capital Corporation CFE

  	
   

  	
  (313,117

  	
  )

  	
   

  	
   

  
	
  Mellon HBV SPV LLC

  	
   

  	
   

  	
   

  	
  597,189

  	
   

  
	
  PIMCO Investor Group

  	
   

  	
   

  	
   

  	
  626,664

  	
   

  
	
  PIMCO—Addison

  	
   

  	
  (58,901

  	
  )

  	
   

  	
   

  
	
  PIMCO—Athena

  	
   

  	
  (69,832

  	
  )

  	
   

  	
   

  
	
  PIMCO—Bedford

  	
   

  	
  (72,349

  	
  )

  	
   

  	
   

  
	
  PIMCO—Captiva III

  	
   

  	
  (87,289

  	
  )

  	
   

  	
   

  
	
  PIMCO—Captiva IV

  	
   

  	
  (70,032

  	
  )

  	
   

  	
   

  
	
  PIMCO—Catalina

  	
   

  	
  (44,509

  	
  )

  	
   

  	
   

  
	
  PIMCO—Delano

  	
   

  	
  (104,747

  	
  )

  	
   

  	
   

  
	
  PIMCO—Jissekikun

  	
   

  	
  (31,716

  	
  )

  	
   

  	
   

  
	
  PIMCO-Royalton Co.

  	
   

  	
  (87,289

  	
  )

  	
   

  	
   

  
	
  Strategic Value Master Fund Ltd

  	
   

  	
   

  	
   

  	
  895,213

  	
   

  
	
  TRS Thebe LLC

  	
   

  	
   

  	
   

  	
  431,180

  	
   

  
	
  York Capital Management, L.P.

  	
   

  	
   

  	
   

  	
  576,011

  	
   

  



 


26

















 


	
  Management Holders

  	
   

  	
   

  	
   

  	
  Number of

  Shares Owned

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  [To be
  added]

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


27

















 


SCHEDULE B


 


 


NOTICES


 


If to the
Company, to:


 


Superior Essex
Inc.

Attention: Chief Executive Officer

150 Interstate North Parkway

Suite 300

Atlanta, Georgia  30339


 


Tel:                            (770)
953-8338

Fax:                           (770)
303-8892


 


with a copy
to:


 


Proskauer Rose
LLP

Attention: Ronald R. Papa, Esq.

1585 Broadway

New York, New York 10036-8299


 


Tel:                            (212) 969-3000

Fax:                           (212) 969-2900


 


If to the Holders,
to:


 


such Holder,
at such Holder’s address or to such Holder’s telephone or telecopy number
reflected in the Company’s books and records


 


with a copy
to:


 


Simpson
Thacher & Bartlett LLP

Attention:  Peter J. Gordon, Esq. 

425 Lexington Avenue

New York, New York 10017


 


Tel:                            (212)
455-2605

Fax:                           (212)
455-2502