exv10w1



 




Exhibit
10.1




EXECUTION COPY



 





Registration Rights Agreement




Dated as of October 2, 2007




between




General Cable Corporation,

the Guarantors named herein,




and




The Purchaser listed on the signature pages hereto




 





 









 








REGISTRATION RIGHTS AGREEMENT




          This Registration Rights Agreement (the “Agreement”) is made and entered into this 2nd day of
October, 2007, between General Cable Corporation, a Delaware corporation (the “Company”), the
subsidiary guarantors named in the signature pages hereto (each a “Guarantor” and collectively, the
“Guarantors”) and Merrill Lynch, Pierce, Fenner & Smith Incorporated, as the Initial Purchaser (the
“Purchaser”).




          This Agreement is made pursuant to the Purchase Agreement (the “Purchase Agreement”), dated
September 26, 2007, between the Company, the Guarantors and the Purchaser, which provides for (1)
the sale by the Company to the Purchaser of $415.0 million aggregate principal amount ($475.0
million aggregate principal amount if the Purchaser exercises its over-allotment option in full) of
the Company’s 1.00% Senior Convertible Notes due 2012 (the “Notes”) to be fully and unconditionally
guaranteed on a senior unsecured basis, jointly and severally by the Guarantors pursuant to their
guarantees (the “Guarantees”). The Notes together with the Guarantees and the shares of Common
Stock of the Company into which the Notes are convertible are herein referred to as the Securities.
In order to induce the Purchaser to enter into the Purchase Agreement, the Company and the
Guarantors have agreed to provide to the Purchaser and their direct and indirect transferees the
registration rights set forth in this Agreement. The execution of this Agreement is a condition to
the closing under the Purchase Agreement.




          In consideration of the foregoing, the parties hereto agree as follows:




          1. Definitions.




          As used in this Agreement, the following capitalized defined terms shall have the following
meanings:





     “1933 Act” shall mean the Securities Act of 1933, as amended from time to time.




     “1934 Act” shall mean the Securities Exchange Act of l934, as amended from time
to time.




     “1939 Act” shall mean the Trust Indenture Act of 1939, as amended from time to
time.




     “Additional Interest” shall have the meaning set forth in Section 2.4 herein.




     “Agreement” shall have the meaning set forth in the preamble.




     “Closing Date” shall mean the Closing Time as defined in the Purchase
Agreement.




     “Common Stock” shall mean any shares of common stock, $0.01 par value, of the
Company and any other shares of common stock as may constitute “Common Stock” for purposes
of the Indenture.



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     “Company” shall have the meaning set forth in the preamble and shall also
include the Company’s successors.




     “Depositary” shall mean The Depository Trust Company, or any other depositary
appointed by the Company, provided, however, that such depositary must have an address in
the Borough of Manhattan, in the City of New York.




     “Effectiveness Period” shall have the meaning set forth in Section 2.1(b)
herein.




     “Holder” shall mean the Purchaser, for so long as it owns any Registrable
Securities, and its successors, assigns and direct and indirect transferees who become
owners, beneficial or otherwise, of Registrable Securities under the Indenture.




     “Holders’ Counsel” shall have the meaning set forth in this Section 1.




     “Indenture” shall mean the Indenture relating to the Securities, dated as of
the date hereof, between the Company, the Guarantors and U.S. Bank National Association, as
Trustee, as the same may be amended, supplemented, waived or otherwise modified from time to
time in accordance with the terms thereof.




     “Issuer Free Writing Prospectus” shall have the meaning set forth in Section
2.1(f) herein.




     “Majority Holders” shall mean the Holders of a majority of the aggregate
principal amount of outstanding Registrable Securities; provided that, for purposes of this
definition, (1) a Holder of shares of Common Stock that constitutes Registrable Securities
which were issued upon conversion of the Notes shall be deemed to hold an aggregate
principal amount at maturity of Notes (in addition to the principal amount at maturity of
any Notes held by such Holder) equal to the principal amount at maturity of Notes which were
converted into such shares of Common Stock and (2) such Notes
which were converted into such shares of Common Stock shall be deemed to be outstanding; provided further, that whenever
the consent or approval of Holders of a specified percentage of Notes is required hereunder,
Notes held by the Company or any Affiliate (as defined in the Indenture) of the Company
shall be disregarded in determining whether such consent or approval was given by the
Holders of such required percentage amount.




     “Notes” shall have the meaning set forth in the preamble.




     “Offering Memorandum” shall mean the offering memorandum of the Company, dated
September 27, 2007, related to the Securities.




     “Person” shall mean an individual, partnership (general or limited),
corporation, limited liability company, trust or unincorporated organization, or a
government or agency or political subdivision thereof.




     “Prospectus” shall mean the prospectus included in a Shelf Registration
Statement, including any preliminary prospectus, and any such prospectus as amended or
supplemented by any prospectus supplement, including any such prospectus supplement



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with respect to the terms of the offering of any portion of the Registrable Securities
covered by a Shelf Registration Statement, and by all other amendments and supplements to a
prospectus, including post-effective amendments, and in each case including all materials
incorporated by reference therein.




     “Purchase Agreement” shall have the meaning set forth in the preamble.




     “Purchaser” shall have the meaning set forth in the preamble.




     “Questionnaire” shall have the meaning set forth in Section 2.1(d) herein.




     “Registrable Securities” shall mean all or any of the Notes issued from time to
time under the Indenture in registered form, and the shares of Common Stock issued or
issuable upon conversion of such Notes; provided, however, that any such Securities shall
cease to be Registrable Securities at the earlier of when (i) a Shelf Registration Statement
with respect to such Securities shall have been declared effective or otherwise become
effective under the 1933 Act and such Securities shall have been disposed of pursuant to
such Shelf Registration Statement, (ii) such Securities have been sold to the public
pursuant to Rule 144 or may be sold or transferred pursuant to Rule l44(k) (or any similar
provision then in force, but not Rule 144A) under the 1933 Act by holders who are not
“affiliates” of the Company, or (iii) such Securities shall have ceased to be outstanding.




     “Registration Default” shall have the meaning set forth in Section 2.4 herein.




     “Registration Expenses” shall mean any and all expenses incident to performance
of or compliance by the Company and the Guarantors with this Agreement, whether or not a
Shelf Registration Statement becomes effective, including without limitation: (i) all SEC,
stock exchange or National Association of Securities Dealers, Inc. (the “NASD”) registration
and filing fees, including, if applicable, the reasonable fees and expenses of any
“qualified independent underwriter” (and its counsel) that is required to be retained by any
holder of Registrable Securities in accordance with the rules and regulations of the NASD,
(ii) all fees and expenses incurred by the Company and the Guarantors in connection with
compliance with state securities or blue sky laws and compliance with the rules of the NASD
(including reasonable fees and disbursements of counsel for any underwriters or Holders in
connection with blue sky qualification of any of the Registrable Securities and any filings
with the NASD), (iii) all expenses of the Company and the Guarantors in preparing or
assisting in preparing, word processing, printing and distributing any Shelf Registration
Statement, any Prospectus, any amendments or supplements thereto, any securities sales
agreements and other documents relating to the performance of and compliance with this
Agreement, (iv) all fees and expenses incurred by the Company and the Guarantors in
connection with the listing, if any, of any of the Registrable Securities on any securities
exchange or exchanges, (v) all rating agency fees incurred by the Company and the Guarantors
        , if any, (vi) the fees and disbursements of counsel for the Company and the Guarantors and
of the independent public accountants of the Company and the Guarantors, including the
expenses of any special audits or “comfort” letters required by or incident to such
performance and compliance, (vii) the fees and expenses of the Trustee, and any escrow agent
or custodian, (viii) the reasonable



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fees and expenses of a single counsel to the Holders, which counsel shall be selected
by the Majority Holders or the Purchaser on their behalf, (the “Holders’ Counsel”) in
connection with the Shelf Registration Statement, and (ix) any fees and expenses of any
special experts retained by the Company and the Guarantors in connection with any Shelf
Registration Statement, but excluding any underwriting discounts and commissions and
transfer taxes, if any, relating to the sale or disposition of Registrable Securities by a
Holder and the fees and expenses of any counsel to, or other experts retained by, the
Holders, except as provided for in clause (viii) above.




     “SEC” shall mean the Securities and Exchange Commission or any successor agency
or government body performing the functions currently performed by the United States
Securities and Exchange Commission.




     “Securities” shall have the meaning set forth in the preamble.




     “Shelf Registration” shall mean a registration effected pursuant to Section 2.1
hereof.




     “Shelf Registration Statement” shall mean a “shelf” registration statement of
the Company pursuant to the provisions of Section 2.1 of this Agreement which covers all of
the Registrable Securities on an appropriate form under Rule 415 under the 1933 Act, or any
similar rule that may be adopted by the SEC, and all amendments and supplements to such
registration statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all materials incorporated by
reference therein.




     “Suspension Period” shall have the meaning set forth in Section 2.5 herein.




     “Trustee” shall mean the trustee with respect to the Securities under the
Indenture.




     “Underwriter” shall have the meaning set forth in Section 4(a).




     2. Registration Under the 1933 Act.




     2.1 Shelf Registration.



               (a) The Company and the Guarantors shall, at their cost, file with the SEC, and thereafter
shall use their commercially reasonable efforts to cause to be declared effective as promptly as
practicable but no later than 240 days after making such filing, a Shelf Registration Statement
(which may be an automatic shelf registration statement) relating to the offer and sale of the
Registrable Securities by the Holders that have provided the information pursuant to Section
2.1(d).



               (b) The Company and the Guarantors shall, at their cost, use their commercially reasonable
efforts, subject to Section 2.5, to keep the Shelf Registration Statement continuously effective in
order to permit the Prospectus forming part thereof to be usable by Holders beginning upon the
effective date of the Shelf Registration Statement until the earliest of (i) the date that is two
years after the last day of original issuance of the Notes, (ii) the sale



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pursuant to the Shelf Registration Statement of the Registrable Securities, (iii) the date
when the Holders, other than Holders that are “affiliates” (as defined in Rule 144 under the 1933
Act) of the Company, of the Registrable Securities are able to sell all such Registrable Securities
immediately without restriction pursuant to Rule 144 (or any similar provision then in force,
including Rule 144 (k) but not Rule 144A) under the 1933 Act or (iv) when all Registrable
Securities cease to be outstanding or otherwise cease to be Registrable Securities (the
“Effectiveness Period”).



               (c) Notwithstanding any other provisions hereof, the Company and the Guarantors shall use
their commercially reasonable efforts to provide that (i) any Shelf Registration Statement and any
amendment thereto and any Prospectus forming part thereof and any supplement thereto complies in
all material respects with the 1933 Act and the rules and regulations thereunder, (ii) any Shelf
Registration Statement and any amendment thereto does not, when it becomes effective, contain 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 and (iii) any Prospectus forming part of
any Shelf Registration Statement, and any supplement to such Prospectus (as amended or supplemented
from time to time), does not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading.



               (d) Notwithstanding any other provision hereof, no Holder of Registrable Securities may
include any of its Registrable Securities in the Shelf Registration Statement pursuant to this
Agreement unless the Holder furnishes to the Company a fully completed notice and questionnaire in
the form attached as Annex A to the Offering Memorandum (the “Questionnaire”) and such other
information in writing as the Company may reasonably request in writing for use in connection with
the Shelf Registration Statement or Prospectus included therein and in any application to be filed
with or under state securities laws. At least 30 days prior to the filing of the Shelf Registration
Statement, the Company will provide notice to the Holders of its intention to file the Shelf
Registration Statement. In order to be named as a selling securityholder in the Prospectus at the
time of effectiveness of the Shelf Registration Statement, each Holder must, before the filing of
the Shelf Registration Statement and no later than the 20th day after the mailing or providing of
the Questionnaire to such Holder, furnish the completed Questionnaire and such other information
that the Company may reasonably request in writing, if any, to the Company in writing and the
Company shall include the information from the completed Questionnaire and such other information,
if any, in the Shelf Registration Statement and the Prospectus in a manner so that upon
effectiveness of the Shelf Registration Statement the Holder will be permitted to deliver the
Prospectus to purchasers of the Holder’s Registrable Securities. From and after the date that the
Shelf Registration Statement is first declared effective by the SEC or otherwise becomes effective,
upon receipt of a completed Questionnaire and such other information that the Company may
reasonably request in writing, if any, except as provided below, the Company and the Guarantors
will use their commercially reasonable efforts to file within 20 business days any amendments or
supplements to the Shelf Registration Statement necessary for such Holder to be named as a selling
securityholder in the Prospectus contained therein to permit such Holder to deliver the Prospectus
to purchasers of the Holder’s Securities (subject to the Company’s right and the Guarantors’ right
to suspend the Shelf Registration Statement as described in Section 2.5 below);



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provided that, nothwithstanding the foregoing the Company shall not be required to file more
than one amendment or supplement to the Shelf Registration Statement to add additional Holders in
any calendar quarter. Holders that do not deliver a completed written Questionnaire and such other
information, as provided for in this Section 2.1(d), will not be named as selling securityholders
in the Prospectus. Each Holder named as a selling securityholder in the Prospectus agrees to
promptly furnish to the Company all information required to be disclosed in order to make
information previously furnished to the Company by the Holder not materially misleading and any
other information regarding such Holder and the distribution of such Holder’s Registrable
Securities as the Company may from time to time reasonably request in writing.



               (e) During the Effectiveness Period, each Holder agrees not to sell any Registrable Securities
pursuant to the Shelf Registration Statement without delivering, or causing to be delivered, a
Prospectus to the purchaser thereof.



               (f) The Company and the Guarantors represent and agree that, unless they obtain the prior
consent of Holders of a majority in principal amount of the Registrable Securities that are
registered under the Shelf Registration Statement at such time or the approval of Holders’ Counsel
or the consent of the managing underwriter in connection with any underwritten offering of
Registrable Securities, and each Holder represents and agrees that, unless it obtains the prior
consent of the Company and any such underwriter, it will not make any offer relating to the
Securities (which, for the avoidance of doubt, will not include any shares of Common Stock which
are not Securities within the meaning of this Agreement) that would constitute an “issuer free
writing prospectus,” as defined in Rule 433 under the 1933 Act (an “Issuer Free Writing
Prospectus”), or that would otherwise constitute a “free writing prospectus,” as defined in Rule
405 under the 1933 Act, required to be filed with the SEC. The Company and the Guarantors
represent that any Issuer Free Writing Prospectus will not include any information that conflicts
with the information contained in the Shelf Registration Statement or Prospectus and that any
Issuer Free Writing Prospectus, when taken together with the information in the Shelf Registration
Statement and the Prospectus, will not include any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.



          The Company and the Guarantors will not permit any securities other than Registrable
Securities to be included in the Shelf Registration Statement. The Company and the Guarantors
further agree to supplement or amend the Shelf Registration Statement if required by the rules,
regulations or instructions applicable to the registration form used by the Company if required by
the 1933 Act, as required by Section 2.3(b) below and to the extent the Company does not reasonably
object, as reasonably requested in writing by any Holder with respect to information relating to
such Holder, and to furnish to the Holders of Registrable Securities that are covered under such
Shelf Registration Statement copies of any such supplement or amendment promptly after its being
used or filed with the SEC in such amounts as they may reasonably request.




          2.2 Expenses. The Company and the Guarantors shall pay all Registration Expenses in
connection with the registration pursuant to Section 2.1. Each Holder shall pay all


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underwriting discounts and commissions and transfer taxes, if any, relating to the sale or
disposition of such Holder’s Registrable Securities pursuant to the Shelf Registration Statement.




          2.3 Effectiveness. (a) The Company or a Guarantor will be deemed not to have used its
commercially reasonable efforts to cause the Shelf Registration Statement to become, or to
remain, effective during the requisite period (subject to Section 2.5) if the Company or
Guarantor voluntarily takes any action that would, or omits to take any action which omission
would, result in any such Shelf Registration Statement not being declared effective or in the
Holders of Registrable Securities covered thereby not being able to offer and sell such
Registrable Securities during that period as and to the extent contemplated hereby, unless
such action is required by applicable law.




               (b) A Shelf Registration Statement pursuant to Section 2.1 hereof will not be deemed to have
become effective unless it has been declared effective by the SEC or has become automatically
effective under the 1933 Act; provided, however, that if, after it has been declared or become
effective, the offering of Registrable Securities pursuant to a Shelf Registration Statement is
interfered with by any stop order, injunction or other order or requirement of the SEC or any other
governmental agency or court, such Shelf Registration Statement will not be deemed to be effective
during the period of such interference, until the offering of Registrable Securities pursuant to
such Shelf Registration Statement may legally resume.



          2.4 Interest. In the event that (a) a Shelf Registration Statement is not declared
effective or otherwise becomes effective on or prior to the 240th calendar day following the
making of such filing, (b) after effectiveness, subject to Section 2.5, the Shelf Registration
Statement ceases to be effective or fails to be usable by the Holders without being succeeded
within seven business days by a post-effective amendment or a report filed with the SEC
pursuant to the 1934 Act that immediately cures the failure to be effective or usable, or (c)
the Shelf Registration Statement is unusable by the Holders for any reason, and the number of
days for which the Shelf Registration Statement shall not be usable exceeds the Suspension
Period (as defined in Section 2.5 hereof) (each such event being a “Registration
Default”), additional interest (“Additional Interest”) will accrue at a rate per
annum of one-quarter of one percent (0.25%) of the principal amount of the Securities for the
first 90 day period from the day following the Registration Default, and thereafter at a rate
per annum of one-half of one percent (0.50%) of the principal amount of the Securities;
provided that in no event shall Additional Interest accrue at a rate per annum exceeding one
half of one percent (0.50%) of the issue price of the Securities and no Additional Interest
shall accrue after the second anniversary of the date of the initial issuance of the Notes.
Upon the cure of all Registration Defaults then continuing, the accrual of Additional Interest
will automatically cease and the interest rate borne by the Securities will revert to the
original interest rate at such time. Additional Interest shall be computed based on the
actual number of days elapsed in each 90-day period in which the Shelf Registration Statement
or the Prospectus is not effective or is unusable. Holders who have received Common Stock in
connection with the conversion of the Notes will not be entitled to receive any Additional
Interest with respect to such Common Stock or the issue price of the Securities converted.




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          The Company and the Guarantors shall notify the Trustee within five business days after each
and every date on which an event occurs in respect of which Additional Interest are required to be
paid. Additional Interest shall be paid by depositing with the Trustee, in trust, for the benefit
of the Holders of Registrable Securities, on or before the applicable semiannual interest payment
date, in immediately available funds in sums sufficient to pay the Additional Interest then due.
The Additional Interest due shall be payable in arrears on each interest payment date to the record
Holder of Registrable Securities entitled to receive the interest payment to be paid on such date
as set forth in the Indenture. Each obligation to pay Additional Interest shall be deemed to
accrue from and including the day following the Registration Default to but excluding the day on
which the Registration Default is cured.




          A Registration Default under clause (a) above shall be cured on the date that the Registration
Statement is filed with the SEC. A Registration Default under clause (b) above shall be cured on
the date that the Shelf Registration Statement is declared effective by the SEC or deemed to become
automatically effective under the 1933 Act. A Registration Default under clauses (c) or (d) above
shall be cured on the date an amended Shelf Registration Statement is declared effective by the SEC
or deemed to become automatically effective under the 1933 Act, or the Company and the Guarantors
otherwise declares the Shelf Registration Statement and the Prospectus useable, as applicable. The
Company and the Guarantors will have no liabilities for monetary damages other than the Additional
Interest with respect to any Registration Default.




          2.5 Suspension. Notwithstanding any other provision hereof, the Company and the
Guarantors may suspend the use of any Prospectus, without incurring or accruing any obligation
to pay Additional Interest pursuant to Section 2.4 hereof or being deemed in violation of any
other provision hereof, for a period or periods (each, a “Suspension Period”) not to
exceed an aggregate 60 calendar days in any three-month period, or an aggregate of 120
calendar days in any twelve-month period, if the Board of Directors of the Company shall have
determined in good faith that because of valid business reasons (not including avoidance of
the Company’s obligations hereunder), including without limitation proposed or pending
corporate developments and similar events or because of filings with the SEC, it is in the
best interests of the Company and the Guarantors to suspend such use, and prior to suspending
such use the Company provides the Holders with written notice of such suspension, which notice
need not specify the nature of the event giving rise to such suspension.




          3. Registration Procedures.




          In connection with the obligations of the Company and the Guarantors with respect to the Shelf
Registration, the Company and the Guarantors shall, subject to the rights of the Company to invoke
and maintain a Suspension Period in accordance with Section 2.5 of this Agreement without being in
violation of any of the provisions hereof:




               (a) prepare and file with the SEC a Shelf Registration Statement, within the relevant time
period specified in Section 2, on the appropriate form under the 1933 Act, which form (i) shall be
selected by the Company, (ii) shall be available for the sale of the Registrable Securities by the
selling Holders thereof, (iii) shall comply as to form in all material respects with the
requirements of the applicable form and include or incorporate by reference all financial
statements required by the SEC to be filed therewith or incorporated by reference



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therein, and (iv) shall comply in all respects with the applicable requirements of Regulation
S-T under the 1933 Act, if any, and use commercially reasonable efforts to cause such Shelf
Registration Statement to become effective and remain effective in accordance with Section 2
hereof;



               (b) prepare and file with the SEC such amendments and post-effective amendments to the Shelf
Registration Statement as may be necessary under applicable law to keep the Shelf Registration
Statement effective for the Effectiveness Period, subject to Section 2.5; and cause each Prospectus
to be supplemented by any required prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 (or any similar provision then in force) under the 1933 Act and comply during
the Effectiveness Period with the provisions of the 1933 Act, the 1934 Act and the rules and
regulations thereunder required to enable the disposition of all Registrable Securities covered by
the Shelf Registration Statement in accordance with the intended method or methods of distribution
by the selling Holders thereof;



               (c) (i) notify each Holder of Registrable Securities of the filing of a Shelf Registration
Statement, by issuing a press release with respect to the Registrable Securities; (ii) furnish to
each Holder of Registrable Securities that has provided the information required by Section 2.1(d)
and to each underwriter of an underwritten offering of Registrable Securities, if any, without
charge, electronic copies of each Prospectus, including each preliminary Prospectus, and any
amendment or supplement thereto and such other documents as such Holder or underwriter may
reasonably request, including financial statements and schedules and, if the Holder so requests,
all exhibits in order to facilitate the unrestricted sale or other disposition of the Registrable
Securities; and (iii) subject to Section 2.5 hereof and to any notice by the Company in accordance
with Section 3(e) hereof of the existence of any fact of the kind described in Sections 3(e)(ii),
(iii), (iv), (v) and (vi) hereof, hereby consent to the use of the Prospectus or any amendment or
supplement thereto by each of the selling Holders of Registrable Securities that has provided the
information required by Section 2.1(d) in connection with the offering and sale of the Registrable
Securities;



               (d) use commercially reasonable efforts to register or qualify the Registrable Securities for
exemptions under all applicable state securities or “blue sky” laws of such jurisdictions as any
Holder of Registrable Securities covered by a Shelf Registration Statement and each underwriter of
an underwritten offering of Registrable Securities shall reasonably request, and do any and all
other acts and things which may be reasonably necessary or advisable to enable each such Holder and
underwriter to consummate the disposition in each such jurisdiction of such Registrable Securities
owned by such Holder; provided, however, that the Company and the Guarantors shall not be required
to (i) qualify as a foreign corporation or as a dealer in securities in any jurisdiction where it
would not otherwise be required to qualify but for this Section 3(d), or (ii) take any action which
would subject it to general service of process or taxation in any such jurisdiction where it is not
then so subject;



               (e) notify promptly each Holder of Registrable Securities under a Shelf Registration Statement
that has provided the information required by Section 2.1(d) and, if requested by such Holder,
confirm such advice in writing promptly (i) when a Shelf Registration Statement has become
effective and when any post-effective amendments thereto have become effective, (ii) of any request
by the SEC or any state securities authority for post-effective



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amendments and supplements to a Shelf Registration Statement and Prospectus or for additional
information relating thereto after the Shelf Registration Statement has become effective, (iii) of
the issuance by the SEC or any state securities authority of any stop order suspending the
effectiveness of a Shelf Registration Statement or the initiation of any proceedings for that
purpose, (iv) of the happening of any event or the discovery of any facts during the period a Shelf
Registration Statement is effective which makes any statement made in such Shelf Registration
Statement or the related Prospectus untrue in any material respect or which requires the making of
any changes in such Shelf Registration Statement or Prospectus in order to make the statements
therein, in the case of the Prospectus in light of the circumstances under which they were made,
not misleading, (v) of the receipt by the Company or any Guarantor of any notification with respect
to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose and (vi) of any determination
by the Company and the Guarantors that a post-effective amendment to such Shelf Registration
Statement would be appropriate, other than a post-effective amendment solely to add Guarantors or
selling Holders;



               (f) furnish to Holders’ Counsel, the Purchaser on behalf of the Holders of Registrable
Securities and to special counsel to the Purchaser (i) copies of any comment letters received from
the SEC with respect to a Shelf Registration Statement, and, if requested, with respect to any
documents incorporated therein and (ii) any other request by the SEC or any state securities
authority for amendments or supplements to a Shelf Registration Statement and Prospectus or for
additional information with respect to the Shelf Registration Statement and Prospectus;



               (g) use commercially reasonable efforts to obtain the withdrawal of any order suspending the
effectiveness of a Shelf Registration Statement at the earliest possible moment and provide prompt
notice to each Holder of the withdrawal of such order;



               (h) furnish to each Holder of Registrable Securities that has provided the information
required by Section 2.1(d), and each underwriter, if any, without charge, at least one conformed
copy of each Shelf Registration Statement and any post-effective amendment thereto, including
financial statements and schedules (without documents incorporated therein by reference and all
exhibits thereto, unless requested);



               (i) if electronic global certificates for the Registrable Securities are not then available,
cooperate with the selling Holders of Registrable Securities to facilitate the timely preparation
and delivery of certificates representing Registrable Securities to be sold and not bearing any
restrictive legends (other than as required by applicable law); and enable such Registrable
Securities to be in such denominations (consistent with the provisions of the Indenture) and
registered in such names as the selling Holders or the underwriters, if any, may reasonably request
at least three business days prior to the closing of any sale of Registrable Securities;



               (j) upon the occurrence of any event or the discovery of any facts, each as contemplated by
Sections 3(e)(ii), (iii), (iv), (v) and (vi) hereof, as promptly as practicable after the
occurrence of such an event, use commercially reasonable efforts to prepare a supplement or
post-effective amendment to the Shelf Registration Statement or the related



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Prospectus or any document incorporated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of the Registrable Securities, such
Prospectus will not contain at the time of such delivery any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading or will remain so qualified. At such time
as such public disclosure is otherwise made or the Company and the Guarantors determine that such
disclosure is not necessary, in each case to correct any misstatement of a material fact or to
include any omitted material fact, the Company and the Guarantors agree promptly to notify each
Holder of Registrable Securities covered by such Shelf Registration Statement of such determination
and to furnish each Holder such number of copies of the Prospectus as amended or supplemented, as
such Holder may reasonably request;



               (k) no less than three business days prior to the filing of any Shelf Registration Statement,
any Prospectus, any amendment to a Shelf Registration Statement or amendment or supplement to a
Prospectus (other than amendments and supplements that do nothing more than name Holders and
provide information with respect thereto), provide copies of such document to the Purchaser on
behalf of such Holders, and make representatives of the Company, as shall be reasonably requested
by the Holders of Registrable Securities, Holders’ Counsel or the Purchaser on behalf of such
Holders, available for discussion of such document;



               (l) obtain CUSIP numbers for all Notes not later than the effective date of the Shelf
Registration Statement and provide the Trustee with printed certificates for the Registrable
Securities in a form eligible for deposit with the Depositary;



               (m) (i) cause the Indenture to be qualified under the 1939 Act in connection with the
registration of the Notes, (ii) cooperate with the Trustee and the Holders to effect such changes
to the Indenture as may be required for the Indenture to be so qualified in accordance with the
terms of the 1939 Act, and (iii) execute, and use commercially reasonable efforts to cause the
Trustee to execute, all documents as may be required to effect such changes, and all other forms
and documents required to be filed with the SEC to enable the Indenture to be so qualified in a
timely manner;



               (n) subject to the last paragraph of this Section 3(n), enter into such customary agreements
(including, if requested, an underwriting agreement in customary form) and take all other customary
and appropriate actions, if any, as the Majority Holders shall reasonably request in writing in
order to expedite or facilitate the disposition of such Registrable Securities, including, but not
limited to:




                    (i) obtain opinions of counsel to the Company and the Guarantors and updates thereof
addressed to each selling Holder and the underwriters, if any, covering the matters set
forth in the opinions of such counsel delivered at the Closing Date as are customarily
covered in legal opinions in connection with underwritten offering of securities;




                    (ii) obtain “comfort” letters and updates thereof from the Company’s and the
Guarantors’ independent certified public accountants (and, if necessary, any other
independent certified public accountants of any subsidiary of the



11









 







Company or of any business acquired by the Company for which financial statements are,
or are required to be, included in the Shelf Registration Statement) addressed to the
underwriters, if any, and use commercially reasonable efforts to have such letter addressed
to the selling Holders of Registrable Securities (to the extent consistent with Statement on
Auditing Standards No. 72 of the American Institute of Certified Public Accounts), such
letters substantially in the form and covering the matters in the comfort letter delivered
to the Purchaser on the date the Purchase Agreement was executed;




     (iii) if an underwriting agreement is entered into, cause the same to set forth
indemnification provisions and procedures substantially equivalent to the indemnification
provisions and procedures set forth in Section 4 hereof with respect to the underwriters and
all other parties to be indemnified pursuant to said Section or, at the request of any
underwriters, in the form customarily provided to such underwriters in similar types of
transactions; and




     (iv) deliver such documents and certificates as may be reasonably requested and as are
customarily delivered in similar offerings to the Holders of a majority in principal amount
of the Registrable Securities being sold and the managing underwriters, if any.


The above shall be done only in connection with any underwritten offering of Registrable Securities
using such Shelf Registration Statement pursuant to an underwriting or similar agreement as and to
the extent required thereunder, and as reasonably requested by the Majority Holders thereto,
provided, however, that in no event will an underwritten offering of Registrable Securities be made
without the prior written consent of the Company.




               (o) if reasonably requested in connection with a disposition of Registrable Securities and
reasonably necessary to complete such disposition, upon reasonable advance notice, make available
for inspection during business hours by representatives of the Holders of the Registrable
Securities, any underwriters participating in any disposition pursuant to a Shelf Registration
Statement and any counsel or accountant retained by any of the foregoing, all financial and other
records, pertinent corporate documents and properties of the Company and the Guarantors reasonably
requested by any such persons, and cause the respective officers, directors, employees, and any
other agents of the Company and any Guarantor to supply all information reasonably requested by any
such representative, underwriter, special counsel or accountant in connection with a Shelf
Registration Statement, and make such representatives of the Company and the Guarantors available
for discussion of such documents as shall be reasonably requested by the Purchaser, in each case as
is customary for “due diligence” investigations; provided that, to the extent the Company, in its
reasonable discretion, agrees to disclose material non-public information such persons shall first
agree in writing with the Company that any such non-public information shall be kept confidential
by such persons and shall be used solely for the purposes of exercising rights under this Agreement
and such person shall not engage in trading any securities of the Company until any such material
non-public information becomes properly publicly available, unless (i) disclosure of such
information is required by court or administrative order or is necessary to respond to inquiries of
regulatory authorities, (ii) disclosure of such information is required by law (including any
disclosure requirements pursuant to federal securities laws in connection with the filing of any
Shelf



12









 







Registration Statement or the use of any Prospectus referred to in this Agreement upon a
customary opinion of counsel for such persons delivered and reasonably satisfactory to the
Company), (iii) such information becomes generally available to the public other than as a result
of a disclosure or failure to safeguard by any such person, (iv) such information becomes available
to any such person from a source other than the Company and such source is not bound by a
confidentiality agreement, or (v) such non-public information ceases to be material; provided
further, that, the foregoing inspection and information gathering shall, to the greatest extent
possible, be coordinated on behalf of all the Holders and the other parties entitled thereto by
Holders’ Counsel;



               (p) if requested by any selling Holder provided that such Holder has provided the Company with
the information required in Section 2.1(d), a reasonable time prior to filing the Shelf
Registration Statement, any Prospectus forming a part thereof, any amendment to the Shelf
Registration Statement or amendment or supplement to such Prospectus (other than amendments and
supplements that do nothing more than name Holders and provide information with respect thereto),
(i) provide copies of such document to the Holders of Registrable Securities that have provided the
information required by Section 2.1(d), to the Purchaser, to Holders’ Counsel and to the
underwriter or underwriters of an underwritten offering of Registrable Securities, if any, (ii)
make such changes in any such document prior to the filing thereof as the Purchaser, Holders’
Counsel or the underwriter or underwriters reasonably request and provide to the Company in writing
for inclusion therein within three business days of delivery of such copies, (iii) if requested by
any selling Holder, not file any such document in a form (A) to which the Majority Holders, the
Purchaser on behalf of Holders of Registrable Securities, Holders’ Counsel or any underwriter shall
not have previously been advised and furnished a copy of or (B) to which the Majority Holders, the
Purchaser on behalf of the Holders of Registrable Securities, Holders’ Counsel or any underwriter
shall reasonably object within three business days of delivery of such copies, and (iv) make the
representatives of the Company and the Guarantors available for discussion of such document as
shall be reasonably requested by the Holders of Registrable Securities, the Purchaser on behalf of
such Holders, Holders’ Counsel or any underwriter, provided that, the foregoing discussion shall be
coordinated on behalf of the parties entitled thereto by the Holders’ Counsel and shall be kept
confidential by the Holders;



               (q) if requested by any selling Holder provided that such Holder has provided the Company with
the information required in Section 2.1(d), or the underwriters, if any, incorporate in the Shelf
Registration Statement or Prospectus, pursuant to a supplement or post-effective amendment if
necessary, such information as such selling Holder or underwriter, if any, may reasonable request
to have included therein with respect to the name or names of such selling Holder, the number of
shares of Common Stock or principal amount of Securities owned by such Holder, the plan of
distribution of the Registrable Securities (as required by Item 508 of Regulation S-K), the
principal amount of Securities or number of shares of Common Stock being sold, the purchase price
being paid therefor, and any other terms of the offering of the Registrable Securities to be sold
in such offering;



               (r) use commercially reasonable efforts to cause all Notes to be listed on any securities
exchange or inter-dealer quotation system on which similar debt securities issued by the Company
are then listed if requested by the Majority Holders, or to use commercially reasonable efforts to
cause all shares of common stock issuable upon the



13









 







conversion of the Notes to be listed on any securities exchange or inter-dealer quotation
system on which similar equity securities issued by the Company are then listed if requested by the
underwriter or underwriters of an underwritten offering of Registrable Securities, if any;



               (s) use commercially reasonable efforts to cause the Registrable Securities to be rated by the
appropriate rating agencies if requested by the underwriter or underwriters of an underwritten
public offering of Registrable Securities, if any;



               (t) otherwise comply with all applicable rules and regulations of the SEC and make available
to its security holders, as soon as reasonably practicable, an earnings statement covering at least
12 months which shall satisfy the provisions of Section 11(a) of the 1933 Act and Rule 158
thereunder; and



               (u) cooperate and assist in any filings required to be made with the NASD and in the
performance of any due diligence investigation by any underwriter and its counsel (including any
“qualified independent underwriter” that is required to be retained in accordance with the rules
and regulations of the NASD).



          Without limiting the provisions of Section 2.1(d), the Company and the Guarantors may (as a
condition to such Holder’s participation in the Shelf Registration) require each Holder of
Registrable Securities to furnish to the Company and the Guarantors such information regarding the
Holder and the proposed distribution by such Holder of such Registrable Securities as the Company
and the Guarantors may from time to time reasonably request in writing.




          Each Holder agrees that, upon receipt of any notice from the Company of the happening of any
event or the discovery of any facts, each of the kind described in Section 3(e)(ii), (iii), (iv),
(v) or (vi) hereof, such Holder will forthwith discontinue disposition of Registrable Securities
pursuant to the Prospectus included in the Shelf Registration Statement until such Holder’s receipt
of the copies of the supplemented or amended Prospectus contemplated by Section 3(j) hereof or
written notice from the Company that the Shelf Registration Statement is again effective and no
amendment or supplement is needed, and, if so directed by the Company, such Holder will deliver to
the Company (at its expense) all copies in such Holder’s possession, other than permanent file
copies then in such Holder’s possession, of the Prospectus covering such Registrable Securities
current at the time of receipt of such notice.




          In the event that a Registration Default has occurred and is continuing, the Company and the
Guarantors shall not file any Registration Statement with respect to any securities (within the
meaning of 2(l) of the 1933 Act) of the Company or any of its subsidiaries other than Registrable
Securities.




          If any of the Registrable Securities covered by any Shelf Registration Statement are to be
sold in an underwritten offering, the underwriter or underwriters and manager or managers that will
manage such offering will be selected by the Majority Holders of such Registrable Securities
included in such offering and shall be acceptable to the Company. No Holder of Registrable
Securities may participate in any underwritten registration hereunder unless such Holder (a) agrees
to sell such Holder’s Registrable Securities on the basis provided



14









 






in any underwriting arrangements approved by the persons entitled hereunder to approve such
arrangements and (b) completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such underwriting
arrangements.




          4. Indemnification; Contribution.




               (a) The Company and the Guarantors agree to indemnify and hold harmless the Purchaser, each
Holder, each Person who participates as an underwriter, if any (any such Person being an
“Underwriter”) and each Person, if any, who controls any such Holder or Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:




               (i) against any and all loss, liability, claim, damage and expense whatsoever, as
incurred, arising out of any untrue statement or alleged untrue statement of a material fact
contained in any Shelf Registration Statement (or any amendment or supplement thereto)
pursuant to which Registrable Securities were registered under the 1933 Act, including all
documents incorporated therein by reference, or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make the statements therein
not misleading, or arising out of any untrue statement or alleged untrue statement of a
material fact contained in any Prospectus (or any amendment or supplement thereto) or any
Issuer Free Writing Prospectus (or any amendment or supplement thereto) or the omission or
alleged omission therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading;




               (ii) against any and all loss, liability, claim, damage and expense whatsoever, as
incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or threatened, or
of any claim whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section 4(d) below) any such
settlement is effected with the written consent of the indemnifying party; and




               (iii) against any and all expense whatsoever, as incurred (including the reasonable
fees and disbursements of counsel chosen by any indemnified party), reasonably incurred in
investigating, preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid under subparagraph
(i) or (ii) above;


provided, however, that this indemnity agreement shall not apply to (A) any loss, liability, claim,
damage or expense to the extent arising out of any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with written information furnished to
the Company and the Guarantors by or on behalf of any Holder or Underwriter, if any, expressly for
use in a Shelf Registration Statement (or any amendment thereto), any


15









 






Prospectus (or any amendment or supplement thereto) or any Issuer Free Writing Prospectus (or any
amendment or supplement thereto) or (B) any loss liability, claim, damage or expense which, in the
case of this clause (B), is finally judicially determined to have resulted from the gross
negligence, willful misconduct or bad faith of any such party of seeking indemnification.




               (b) Each Holder, severally, but not jointly, agrees to indemnify and hold harmless the
Company, the Guarantors, the Purchaser, each Underwriter, if any, and the other selling Holders,
and each of their respective directors and officers, and each Person, if any, who controls the
Company or any Guarantor, the Purchaser, any Underwriter or any other selling Holder within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, against any and all loss,
liability, claim, damage and expense described in the indemnity contained in Section 4(a)(i)-(iii)
hereof, as incurred, but only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Shelf Registration Statement (or any amendment thereto) or any
Prospectus included therein (or any amendment or supplement thereto) or any Issuer Free Writing
Prospectus in reliance upon and in conformity with written information with respect to such Holder
furnished to the Company by or on behalf of such Holder expressly for use in the Shelf Registration
Statement (or any amendment thereto) or such Prospectus (or any amendment or supplement thereto) or
any Issuer Free Writing Prospectus; provided, however, that no such Holder shall be liable for any
claims hereunder in excess of the amount of net proceeds received by such Holder from the sale of
Registrable Securities pursuant to such Shelf Registration Statement.



               (c) Each indemnified party shall give notice as promptly as reasonably practicable to each
indemnifying party of any action or proceeding commenced against it in respect of which indemnity
may be sought hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a
result thereof and in any event shall not relieve it from any liability which it may have otherwise
than on account of this indemnity agreement. In case any such action, claim, suit, investigation
or proceeding shall be brought against any indemnified party and it shall notify the indemnifying
party of the commencement thereof, the indemnifying party shall be entitled to participate therein
and to assume the defense thereof; provided, however, that in the event that any such action,
claim, suit, investigation or proceeding includes both an indemnified party and the indemnifying
party, and such indemnified party reasonably concludes that there may be legal defenses available
to it or other indemnified parties that are different from or in addition to those available to the
indemnifying party, or if the indemnifying party fails to assume the defense of the action, claim,
suit, investigation or proceeding, in either case in a timely manner, then such indemnified party
may employ separate counsel to represent or defend it in any such action, claim, suit,
investigation or proceeding and the indemnifying party will pay the reasonable fees and
disbursements of such counsel; provided, further, that the indemnifying party will not be required
to pay the fees and disbursements of more than one counsel for all indemnified parties (and one
separate local counsel). In any action, claim, suit, investigation or proceeding the defense of
which the indemnifying party assumes, the indemnified party will have the right to participate in
such litigation and to retain its own counsel at such indemnified party’s own expense. No
indemnifying party shall (i) without the prior written consent of the indemnified parties (which
consent shall not be unreasonably withheld), settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim



16









 







whatsoever in respect of which indemnification or contribution could be sought under this
Section 4 (whether or not the indemnified parties are actual or potential parties thereto), unless
such settlement, compromise or consent (A) includes an unconditional release of each indemnified
party from all liability arising out of such litigation, investigation, proceeding or claim and (B)
does not include a statement as to or an admission of fault, culpability or a failure to act by or
on behalf of any indemnified party or (ii) be liable for any settlement of any such action effected
without its prior written consent (which consent shall not be unreasonably withheld).



               (d) Notwithstanding clause (ii) of Section 4(c), if at any time an indemnified party shall
have requested an indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that, subject to the proviso in the last paragraph of
Section 4.1(a), it shall be liable for any settlement of the nature contemplated by Section
4(a)(ii) effected without its written consent if (i) such settlement is entered into more than 60
days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying
party shall have received notice of the terms of such settlement at least 30 days prior to such
settlement being entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such settlement.



               (e) If the indemnification provided for in this Section 4 is for any reason unavailable to or
insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall contribute to the
aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault
of the Company and the Guarantors on the one hand and the Holders and the Purchaser on the other
hand in connection with the statements or omissions which resulted in such losses, liabilities,
claims, damages or expenses, as well as any other relevant equitable considerations.



          The relative fault of the Company on the one hand and the Holders and the Purchaser on the
other hand shall be determined by reference to, among other things, whether any such untrue or
alleged untrue statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company and the Guarantors, or by the Holders and the
Purchaser and the parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.




          The Company, the Guarantors, the Holders and the Purchaser agree that it would not be just and
equitable if contribution pursuant to this Section 4 were determined by pro rata allocation or by
any other method of allocation which does not take account of the equitable considerations referred
to above in this Section 4. The aggregate amount of losses, liabilities, claims, damages and
expenses incurred by an indemnified party and referred to above in this Section 4 shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified party in
investigating, preparing or defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any
such untrue or alleged untrue statement or omission or alleged omission.




17









 








          Notwithstanding the provisions of this Section 4, the Purchaser shall not be required to
contribute any amount in excess of the amount by which the total price at which the Securities sold
by it were offered exceeds the amount of any damages which the Purchaser has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission or alleged
omission.




          No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the
1933 Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent
misrepresentation.




          For purposes of this Section 4, each Person, if any, who controls the Purchaser or any Holder
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same
rights to contribution as such Purchaser or the Holder, and each director of the Company, and each
Person, if any, who controls the Company or any Guarantor within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution as the Company.
The obligations of the Company, the Purchaser and the Holders pursuant to this Section 4 shall be
in addition to any liability that such party may otherwise have.




          5. Miscellaneous.




          5.1 Rule 144 and Rule 144A. During the Effectiveness Period, for so long as the Company
is subject to the reporting requirements of Section 13 or 15(d) of the 1934 Act, the Company
covenants that it will file the reports required to be filed by it under Section 13 of 15(d)
of the 1934 Act and the rules and regulations adopted by the SEC thereunder. If during the
Effectiveness Period the Company ceases to be so required to file such reports, the Company
covenants that it will upon the request of any Holder of Registrable Securities (a) make
publicly available such information as is necessary to permit sales pursuant to Rule 144 under
the 1933 Act, (b) deliver such information to a prospective purchaser as is necessary to
permit sales pursuant to Rule 144A under the 1933 Act and it will take such further action as
any Holder of Registrable Securities may reasonably request for such purpose, and (c) take
such further action that is reasonable in the circumstances, in each case, to the extent
required from time to time to enable such Holder to sell its Registrable Securities without
registration under the 1933 Act within the limitation of the exemptions provided by (i) Rule
144 under the 1933 Act, as such Rule may be amended from time to time, (ii) Rule 144A under
the 1933 Act, as such Rule may be amended from time to time, or (iii) any similar rules or
regulations hereafter adopted by the SEC. Upon the written request of any Holder of
Registrable Securities, the Company will deliver to such Holder a written statement as to
whether it has complied with such requirements.




          5.2 No Inconsistent Agreements. The Company and the Guarantors have not entered into and
the Company and the Guarantors shall not, after the date of this Agreement, enter into any
agreement which is inconsistent in any material respect with the rights granted to the Holders
of Registrable Securities in this Agreement or otherwise conflicts with the provisions hereof.
The rights granted to the Holders hereunder do not and will not for the term of this
Agreement in any way conflict with the rights granted to the holders of any of the Company’s
or any Guarantor’s other issued and outstanding securities under any such agreements.




18









 








          5.3 No Adverse Actions Affecting Registration Rights. Subject to the rights of the
Company and the Guarantors to invoke and maintain a Suspension Period, the Company and the
Guarantors shall not, directly or indirectly, intentionally take any action with respect to
the Registrable Securities as a class that would adversely affect the ability of the Holders
of Registrable Securities to include such Registrable Securities in a registration undertaken
pursuant to this Agreement.




          5.4 Amendments and Waivers. The provisions of this Agreement, including the provisions
of this sentence, may not be amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given unless the Company has obtained the
written consent of the Majority Holders affected by such amendment, modification, supplement,
waiver or departure. Notwithstanding the foregoing, this Agreement may be amended by a
written agreement between the Company, the Guarantors and the Purchaser, without the consent
of the Holders of the Registrable Securities, in order to cure any ambiguity or to correct or
supplement any provision contained herein, provided that no such amendment shall adversely
affect the interest of the Holders of Registrable Securities. Each Holder of Registrable
Securities outstanding at the time of any amendment, modification, waiver or consent pursuant
to this Section 5.4, shall be bound by such amendment, modification, waiver or consent,
whether or not any notice or writing indicating such amendment, modification, waiver or
consent is delivered to such Holder.




          5.5 Notices. All notices and other communications provided for or permitted hereunder
shall be made in writing by hand delivery, registered first-class mail, facsimile, or any
courier guaranteeing overnight delivery (a) if to a Holder, at the most current address given
by such Holder to the Company in a Questionnaire or by means of a notice given in accordance
with the provisions of this Section 5.5, which address initially is the address set forth in
the Purchase Agreement with respect to the Purchaser; and (b) if to the Company or any
Guarantor, initially at the Company’s address set forth in the Purchase Agreement, and
thereafter at such other address of which notice is given in accordance with the provisions of
this Section 5.5.




          All such notices and communications shall be deemed to have been duly given: at the time
delivered by hand, if personally delivered; two business days after being deposited in the mail,
postage prepaid, if mailed; when receipt is acknowledged, if sent by facsimile; and on the next
business day if timely delivered to an overnight courier.




          So long as the Notes remain outstanding, copies of all such notices, demands, or other
communications shall be concurrently delivered by the person giving the same to the Trustee under
the Indenture, at the address specified in such Indenture.




          5.6 Successors and Assigns. This Agreement shall inure to the benefit of and be binding
upon the successors, assigns and transferees of each of the parties, including, without
limitation and without the need for an express assignment, subsequent Holders; provided that
nothing herein shall be deemed to permit any assignment, transfer or other disposition of
Registrable Securities in violation of the terms of the Purchase Agreement or the Indenture.
If any transferee of any Holder shall acquire Registrable Securities, in any manner, whether
by operation of law or otherwise, such Registrable Securities shall be held subject to all of
the terms of this Agreement, and by taking and holding such Registrable Securities such person
shall be


19









 







conclusively deemed to have agreed to be bound by and to perform all of the terms and provisions of
this Agreement, including the restrictions on resale set forth in this Agreement and, if
applicable, the Purchase Agreement, and such person shall be entitled to receive the benefits
hereof. The Purchaser (in their capacity as Purchaser) shall have no liability or obligation to
the Company or the Guarantors with respect to any failure by a Holder, other than the Purchaser, to
comply with, or breach by any Holder, other than the Purchaser, of, any of the obligations of such
Holder under this Agreement.




          5.7 Third Party Beneficiaries. The Purchaser (even if such Purchaser is not a Holder of
Registrable Securities) shall be a third party beneficiary to the agreements made hereunder
between the Company and the Guarantors, on the one hand, and the Holders, on the other hand,
and shall have the right to enforce such agreements directly to the extent it deems such
enforcement necessary or advisable to protect its rights or the rights of Holders hereunder.
Each Holder of Registrable Securities shall be a third party beneficiary to the agreements
made hereunder between the Company and the Guarantors, on the one hand, and the Purchaser, on
the other hand, and shall have the right to enforce such agreements directly to the extent it
deems such enforcement necessary or advisable to protect its rights hereunder.




          5.8 Specific Enforcement. Without limiting the remedies available to the Purchaser and
the Holders, the Company and the Guarantors acknowledges that any failure by the Company and
the Guarantors to comply with its obligations under Section 2.1 hereof may result in material
irreparable injury to the Purchaser or the Holders for which there is no adequate remedy at
law, that it may not be possible to measure damages for such injuries precisely and that, in
the event of any such failure, the Purchaser or any Holder may seek such relief as may be
required to specifically enforce the Company’s obligations under Section 2.1 hereof; provided,
however, that without limiting the ability of the Initial Purchaser or any Holder to
specifically enforce such obligations, in the case of any terms of this Agreement for which
Additional Interest pursuant to Section 2.4 are expressly provided as a remedy for a violation
of such terms, such Additional Interest shall be the sole monetary damages for such violation.




          5.9 Restriction on Resales. Until the expiration of two years after the original
issuance of the Notes, the Company and the Guarantors will not, and will cause their respective
affiliates (as such term is defined in Rule 405 under the 1933 Act) not to, resell any Notes which
are “restricted securities” (as such term is defined under Rule 144(a)(3) under the 1933 Act) that
have been reacquired by any of them and shall immediately upon any purchase of any such Notes
submit such Notes to the Trustee for cancellation.




          5.10 Counterparts. This Agreement may be executed in any number of counterparts and by
the parties hereto in separate counterparts, each of which when so executed shall be deemed to
be an original and all of which taken together shall constitute one and the same agreement.




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




20









 








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




          5.13 Severability. In the event that any one or more of the provisions contained herein,
or the application thereof in any circumstance, is held invalid, illegal or unenforceable, the
validity, legality and enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired thereby.




          5.14 Entire Agreement. This Agreement is intended by the parties as a final expression of
their agreement and intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained herein. There
are no restrictions, promises, warranties or undertakings, other than those set forth or
referred to herein with respect to the registration rights granted by the Company with respect
to the Registrable Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.




21









 





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




	 	 	 	 	 	 	 	 	 
	 	 	GENERAL CABLE CORPORATION	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By	 	/s/ Robert J. Siverd	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Robert J. Siverd	 	 
	 

	 	 	 	Title:
	 	Executive Vice President,	 	 
	 

	 	 	 	             
	 	 General Counsel and Secretary	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	GENCA CORPORATION	 	 
	 	 	GENERAL CABLE INDUSTRIES, INC.	 	 
	 	 	GENERAL CABLE INDUSTRIES LLC	 	 
	 	 	GENERAL CABLE MANAGEMENT LLC	 	 
	 	 	GENERAL CABLE OVERSEAS HOLDINGS, INC.	 	 
	 	 	GENERAL CABLE TECHNOLOGIES CORPORATION	 	 
	 	 	GENERAL CABLE TEXAS OPERATIONS L.P.	 	 
	 	 	GK TECHNOLOGIES, INCORPORATED	 	 
	 	 	DIVERSIFIED CONTRACTORS, INC.	 	 
	 	 	MARATHON MANUFACTURING HOLDINGS, INC.	 	 
	 	 	MARATHON STEEL COMPANY	 	 
	 	 	MLTC COMPANY	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By	 	/s/ Robert J. Siverd	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Robert J. Siverd	 	 
	 

	 	 	 	Title:

         
	 	Executive Vice President,

    General Counsel and Secretary	 	 






Registration Rights Agreement

Siganature Page




 









 




Confirmed and accepted as
      of
the date first above written:




	 	 	 	 	 	 	 
	MERRILL LYNCH, PIERCE, FENNER & SMITH	 	 
	 

	 	 	 	INCORPORATED	 	 
	 
	 	 	 	 	 	 
	By:	 	/s/ Geoffrey T. Blythe	 	 
	 	 	 	 	 
	 

	 	Name:
	 	Geoffrey T. Blythe	 	 
	 

	 	Title:
	 	 Managing Director	 	 






Registration Rights Agreement

Siganature Page