Exhibit 4.4
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COMMSCOPE, INC.
$150,000,000
Convertible Subordinated Notes due 2006
PURCHASE AGREEMENT
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Dated: December 9, 1999
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COMMSCOPE, INC.
$150,000,000
CONVERTIBLE SUBORDINATED NOTES DUE 2006
PURCHASE AGREEMENT
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December 9,1999
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
CIBC WORLD MARKETS CORP.
as Representatives of the several Initial Purchasers
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
CommScope, Inc. (the "Company"), a Delaware corporation, confirms
its agreement with ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ &
▇▇▇▇▇ Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇") and each of the other Initial
Purchasers named in Schedule A hereto (collectively, the "Initial
Purchasers", which term shall also include any initial purchaser
substituted as hereinafter provided in Section 11 hereof), for whom ▇▇▇▇▇▇▇
▇▇▇▇▇ and CIBC World Markets Corp. are acting as representatives (in such
capacity, the "Representatives"), with respect to the issue and sale by the
Company and the purchase by the Initial Purchasers, acting severally and
not jointly, of the respective principal amounts set forth in said Schedule
A of $150,000,000 aggregate principal amount of the Company's Convertible
Subordinated Notes due 2006 (the "Firm Notes"), and, at the election of the
Initial Purchasers, solely to cover over-allotments, if any, in connection
with the offering of the Firm Notes, up to $22,500,000 aggregate principal
amount of additional Convertible Subordinated Notes due 2006 (the
"Additional Notes"). The Firm Notes and any Additional Notes that the
Initial Purchasers elect to purchase are collectively referred to as the
"Notes." The Notes will be convertible at the option of the holder thereof
into
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shares (the "Conversion Shares") of common stock, par value $.01 per
share, of the Company (the "Common Stock"). The Notes are to be issued
pursuant to an indenture to be dated as of the Closing Time (as defined in
Section 2(b)) (the "Indenture") between the Company and First Union
National Bank, as trustee (the "Trustee"). Notes issued in book-entry form
will be issued to Cede & Co. as nominee of The Depository Trust Company
("DTC") pursuant to a letter agreement, to be dated as of the Closing Time
(the "DTC Agreement"), among the Company, the Trustee and DTC.
The Notes and the Conversion Shares are collectively referred to
herein as the "Securities." Capitalized terms used herein without
definition have the respective meanings specified in the Offering
Memorandum.
The Company understands that the Initial Purchasers propose to
make an offering of the Securities on the terms and in the manner set forth
herein and agrees that the Initial Purchasers may resell, subject to the
conditions set forth herein, all or a portion of the Securities to
purchasers ("Subsequent Purchasers") at any time after this Agreement has
been executed and delivered. The Securities are to be offered and sold
through the Initial Purchasers without being registered under the
Securities Act of 1933, as amended (the "1933 Act"), in reliance upon
exemptions therefrom. Pursuant to the terms of the Securities and the
Indenture, investors that acquire Securities may only resell or otherwise
transfer such Securities if such Securities are hereafter registered under
the 1933 Act or if an exemption from the registration requirements of the
1933 Act is available (including the exemption afforded by Rule 144A ("Rule
144A") of the rules and regulations promulgated under the 1933 Act by the
Securities and Exchange Commission (the "Commission")).
The Company has prepared and delivered to each Initial Purchaser
copies of a preliminary offering memorandum dated December 6, 1999 (the
"Preliminary Offering Memorandum") and has prepared and will deliver to
each Initial Purchaser, on the date hereof or the next succeeding day,
copies of a final offering memorandum dated December 9, 1999 (the "Final
Offering Memorandum"), each for use by such Initial Purchaser in connection
with its solicitation of purchases of, or offering of, the Securities.
"Offering Memorandum" means, with respect to any date or time referred to
in this Agreement, the most recent offering memorandum (whether the
Preliminary Offering Memorandum or the Final Offering Memorandum, or any
amendment or supplement to either such document), including exhibits
thereto and any documents incorporated therein by reference, which has been
prepared and delivered by the Company to the Initial Purchasers in
connection with their solicitation of purchases of, or offering of, the
Securities.
The Initial Purchasers and other holders of Securities (including
subsequent transferees) will be entitled to the benefits of the
registration rights agreement, to be dated as of the Closing Time (the
"Registration Rights Agreement"), among the Company and the Initial
Purchasers, in the form attached as Exhibit B. Pursuant to the Registration
Rights Agreement, the Company will agree to file with the Commission a
shelf registration statement pursuant to
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Rule 415 under the 1933 Act relating to resales of the Securities by
holders thereof, and to use its best efforts to cause such shelf
registration statement to be declared effective.
SECTION 1. Representations and Warranties by the Company.
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(a) Representations and Warranties. The Company represents and
warrants to each Initial Purchaser as of the date hereof and as of the
Closing Time referred to in Section 2(c) hereof, and as of each Date of
Delivery (if any) referred to in Section 2(b), and agrees with each Initial
Purchaser, as follows:
(i) Offering Memorandum. The Offering Memorandum does not, and at
the Closing Time (and, if any Additional Notes are purchased, at the
Date of Delivery), will 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 the light of the circumstances under which they
were made, not misleading; provided that this representation, warranty
and agreement shall not apply to statements in or omissions from the
Offering Memorandum made in reliance upon and in conformity with
information furnished to the Company in writing by any Initial
Purchaser through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the Offering
Memorandum.
(ii) Independent Accountants. The accountants who certified the
financial statements and supporting schedules included in the Offering
Memorandum are independent public accountants with respect to the
Company and its subsidiaries within the meaning of Regulation S-X
under the 1933 Act.
(iii) Financial Statements. The financial statements, together
with the related schedules and notes, included in the Offering
Memorandum present fairly the financial position of the Company and
its consolidated subsidiaries at the dates indicated and the statement
of operations, stockholders= equity and cash flows of the Company and
its consolidated subsidiaries for the periods specified; said
financial statements have been prepared in conformity with generally
accepted accounting principles ("GAAP") applied on a consistent basis
throughout the periods involved. The supporting schedules, if any,
included in the Offering Memorandum present fairly in accordance with
GAAP the information required to be stated therein. The selected
financial data and the summary financial information included in the
Offering Memorandum present fairly the information shown therein and
have been compiled on a basis consistent with that of the audited
financial statements included in the Offering Memorandum.
(iv) No Material Adverse Change in Business. Since the respective
dates as of which information is given in the Offering Memorandum,
neither the Company nor any of its subsidiaries has sustained any
material loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree,
except as
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otherwise set forth or contemplated in the Offering Memorandum; and
since the respective dates as of which information is given in the
Offering Memorandum, there has not been any change in the capital
stock or any increase in the long-term debt of the Company or any of
its subsidiaries, other than the issuance of shares of common stock as
a result of exercises of stock options under existing Company stock
option plans, or any material adverse change, or any development that
may be reasonably expected to involve a prospective material adverse
change, in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations of the Company
and its subsidiaries, except as otherwise set forth or contemplated in
the Offering Memorandum.
(v) Good Standing of the Company. The Company is a corporation
duly organized, validly existing and in good standing under the laws
of the State of Delaware with power and authority (corporate and
other) to own its properties and conduct its business as described in
the Offering Memorandum; and the Company is duly qualified to transact
business as a foreign corporation and is in good standing in each
other jurisdiction in which it owns or leases properties or conducts
business so as to require such qualification, or is subject to no
material liability or disability by reason of the failure to be so
qualified in any such jurisdiction.
(vi) Good Standing of Subsidiaries. Each "significant subsidiary"
of the Company (as such term is defined in Rule 1-02 of Regulation
S-X) (each a "Subsidiary" and, collectively, the "Subsidiaries") has
been duly organized and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, has
corporate power and authority to own, lease and operate its properties
and to conduct its business as described in the Offering Memorandum
and is duly qualified as a foreign corporation to transact business
and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not result in a
material adverse effect on the consolidated financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole; except as otherwise disclosed in the
Offering Memorandum, all of the issued and outstanding capital stock
of each such Subsidiary has been duly authorized and validly issued,
is fully paid and non-assessable and is owned by the Company, directly
or through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity; none of the
outstanding shares of capital stock of any Subsidiary was issued in
violation of the preemptive or similar rights of any securityholder of
such Subsidiary. The only Subsidiaries of the Company are the
subsidiaries listed on Schedule C hereto.
(vii) Capitalization. The Company has an authorized
capitalization as set forth in the Offering Memorandum in the column
entitled "Actual" under the caption "Capitalization", and all of the
issued shares of capital stock of the Company have been duly and
validly authorized and issued, are fully paid and non-assessable; and
none of the
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outstanding shares of capital stock of the Company was issued in
violation of the preemptive or other similar rights of any
securityholder of the Company.
(viii) Authorization of Agreement. This Agreement has been duly
authorized, executed and delivered by the Company.
(ix) Authorization of the Indenture. The Indenture has been duly
authorized by the Company and, when executed and delivered by the
Company and the Trustee, will constitute a valid and binding agreement
of the Company, enforceable against the Company in accordance with its
terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar laws
affecting enforcement of creditors= rights generally and except as
enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in
equity or at law).
(x) Authorization of the Notes. The Notes have been duly
authorized and, at the Closing Time, will have been duly executed by
the Company and, when authenticated, issued and delivered in the
manner provided for in the Indenture and delivered against payment of
the purchase price therefor as provided in this Agreement, will
constitute valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent
transfers) reorganization, moratorium or similar laws affecting
enforcement of creditors= rights generally and except as enforcement
thereof is subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at
law), and will be in the form contemplated by, and entitled to the
benefits of, the Indenture.
(xi) Authorization of Registration Rights Agreement. As of the
Closing Time, the Registration Rights Agreement will have been duly
authorized, executed and delivered by the Company and upon such
execution by the Company (assuming the due authorization, execution
and delivery thereof by the other parties thereto) the Registration
Rights Agreement will constitute the valid and binding obligation of
the Company enforceable against the Company in accordance with the
terms thereof, except as enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or
similar laws affecting enforcement of creditors' rights generally and
except as enforcement thereof is subject to general principles of
equity (regardless of whether enforcement is considered in a
proceeding in equity or at law), and except as any rights to indemnity
and contribution may be limited by federal and state securities laws
and public policy considerations.
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(xii) Conversion Shares. The Conversion Shares have been duly
authorized and validly reserved for issuance upon conversion of the
Notes by all necessary corporate action of the Company and, when duly
issued by the Company upon such conversion, will be validly issued,
fully paid and nonassessable; no holder thereof will be subject to
personal liability for obligations of the Company solely by reason of
being such a holder; and the issuance of the Conversion Shares will
not be subject to preemptive or similar rights.
(xiii) Description of the Securities and the Indenture. The
Securities and the Indenture will conform in all material respects to
the respective statements relating thereto contained in the Offering
Memorandum and will be in substantially the respective forms last
delivered to the Initial Purchasers prior to the date of this
Agreement.
(xiv) Absence of Defaults and Conflicts. Neither the Company nor
any of its subsidiaries is in violation of its respective charter or
by-laws or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which or any of
them may be bound, or to which any of the property or assets of the
Company or any of its subsidiaries is subject (collectively,
"Agreements and Instruments") except for such defaults that would not
result in a material adverse effect on the consolidated financial
position, stockholders' equity or results of operations of the Company
and its subsidiaries taken as a whole (a "Material Adverse Effect");
and the execution, delivery and performance of this Agreement, the
Indenture, the Registration Rights Agreement and the Notes and any
other agreement or instrument entered into or issued or to be entered
into or issued by the Company in connection with the transactions
contemplated hereby or thereby or in the Offering Memorandum and the
consummation of the transactions contemplated herein and in the
Offering Memorandum (including the issuance and sale of the Securities
and the use of the proceeds from the sale of the Securities as
described in the Offering Memorandum under the caption "Use of
Proceeds") and compliance by the Company with its obligations
hereunder have been duly authorized by all necessary corporate action
and do not and will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a
default under, any Agreements and Instruments which conflict, breach,
violation or default would have, or may reasonably be expected to
have, a Material Adverse Effect, nor will such action result in any
violation of the provisions of the Certificate of Incorporation or
By-laws of the Company or any statute or any order, rule or regulation
of any court or governmental agency or body having jurisdiction over
the Company or any of its subsidiaries or any of their properties.
(xv) Absence of Proceedings. Other than as set forth or
contemplated in the Offering Memorandum, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Com-
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pany or any of its subsidiaries is the subject which would
individually or in the aggregate have, or may reasonably be expected
to have, a Material Adverse Effect; and, to the best of the Company's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
(xvi) Possession of Intellectual Property. The Company and its
subsidiaries own or possess, or own or possess adequate licenses or
other rights to use, all patents and trademarks used in connection
with the businesses conducted by them as described in the Offering
Memorandum, other than such patents, trademarks or licenses with
respect to which the failure to own or possess, or to own or possess
adequate licenses or other rights to use in connection with the
businesses conducted by the Company and its subsidiaries as described
in the Offering Memorandum, individually or considered together with
all other such failures, may not reasonably be expected to have a
Material Adverse Effect; and neither the Company nor any of its
subsidiaries has received any notice of infringement of or conflict
with (and knows of no such infringement of or conflict with) asserted
rights of others with respect to any such patents, trademarks or
licenses of the Company, which infringement or conflict, individually
or considered together with all other such infringements and
conflicts, would have, or may reasonably be expected to have, a
Material Adverse Effect.
(xvii) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by the Company of
its obligations hereunder, in connection with the offering, issuance
or sale of the Securities hereunder or the consummation of the
transactions contemplated by this Agreement or for the due execution,
delivery or performance of the Indenture and the Registration Rights
Agreement by the Company, except such as have been already obtained
and such as may be required by the securities or Blue Sky laws of the
various states in connection with the offer and sale of the Notes or
by the federal and state securities laws in connection with the
registration obligations under the Registration Rights Agreement.
(xviii) Title to Property. The Company and its subsidiaries have
good and marketable title in fee simple to all real property and good
and marketable title to all personal property owned by them, in each
case free and clear of all liens, encumbrances and defects except such
as are described in the Offering Memorandum or such as do not
materially affect the value of such property and do not interfere in
any material respect with the use made and proposed to be made of such
property by the Company and its subsidiaries; and any real property
and buildings held under lease by the Company and its subsidiaries are
held by them under valid, subsisting and enforceable leases with such
exceptions as are not material and do not interfere in any material
respect with the use made and proposed to be made of such property and
buildings by the Company and its subsidiaries.
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(xix) Environmental Laws. Except as described in the Offering
Memorandum and except such matters as would not, singly or in the
aggregate, result in a Material Adverse Effect, (A) neither the
Company nor any of its subsidiaries is in violation of any federal,
state, local or foreign statute, law, rule, regulation, ordinance,
code, policy or rule of common law or any judicial or administrative
interpretation thereof, including any judicial or administrative
order, consent, decree or judgment, relating to pollution or
protection of human health, the environment (including, without
limitation, ambient air, surface water, groundwater, land surface or
subsurface strata) or wildlife, including, without limitation, laws
and regulations relating to the release or threatened release of
chemicals, pollutants, contaminants, wastes, toxic substances,
hazardous substances, petroleum or petroleum products (collectively,
"Hazardous Materials") or to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling
of Hazardous Materials (collectively, "Environmental Laws"), (B) the
Company and its subsidiaries have all permits, authorizations and
approvals required under any applicable Environmental Laws and are
each in compliance with their requirements, (C) there are no pending
or threatened administrative, regulatory or judicial actions, suits,
demands, demand letters, claims, liens, notices of noncompliance or
violation, investigation or proceedings relating to any Environmental
Law against the Company or any of its subsidiaries and (D) there are
no events or circumstances that might reasonably be expected to form
the basis of an order for clean-up or remediation, or an action, suit
or proceeding by any private party or governmental body or agency,
against or affecting the Company or any of its subsidiaries relating
to Hazardous Materials or Environmental Laws.
(xx) Year 2000. The Company has reviewed its operations to
evaluate the extent to which the business or operations of the Company
will be affected by the Year 2000 Problem (that is, any significant
risk that computer hardware or software applications used by the
Company will not, in the case of dates or time periods occurring after
December 31, 1999, function at least as effectively as in the case of
dates or time periods occurring prior to January 1, 2000); as a result
of such review, the Company has no reasonable belief that there are
any issues related to the Company's preparedness to address the Year
2000 Problem that are of a character required to be described or
referred to in the Offering Memorandum which have not been accurately
described in the Offering Memorandum and which could reasonably be
expected to have a Material Adverse Effect.
(xxi) Investment Company Act. The Company is not, and upon the
issuance and sale of the Securities as herein contemplated and the
application of the net proceeds therefrom as described in the Offering
Memorandum will not be, an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in
the Investment Company Act of 1940, as amended (the "1940 Act").
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(xxii) Similar Offerings. Neither the Company nor any of its
affiliates, as such term is defined in Rule 501(b) under the 1933 Act
(each, an "Affiliate"), has, directly or indirectly, solicited any
offer to buy, sold or offered to sell or otherwise negotiated in
respect of, or will solicit any offer to buy, sell or offer to sell or
otherwise negotiate in respect of, in the United States or to any
United States citizen or resident, any security which is or would be
integrated with the sale of the Securities in a manner that would
require the Securities to be registered under the 1933 Act.
(xxiii) Rule 144A Eligibility. The Notes are eligible for resale
pursuant to Rule 144A and will not be, at the Closing Time, of the
same class as securities listed on a national securities exchange
registered under Section 6 of the Securities Exchange Act of 1934 (the
"1934 Act"), or quoted in a U.S. automated interdealer quotation
system.
(xxiv) No General Solicitation. None of the Company, its
Affiliates or any person acting on its or any of their behalf (other
than the Initial Purchasers, as to whom the Company makes no
representation) has engaged or will engage, in connection with the
offering of the Securities, in any form of general solicitation or
general advertising within the meaning of Rule 502(c) under the 1933
Act.
(xxv) No Registration Required. Subject to the accuracy of the
representations and warranties of the Initial Purchasers set forth in
Section 6(c) and compliance by the Initial Purchasers with the
procedures set forth in Section 6(a) hereof, it is not necessary in
connection with the offer, sale and delivery of the Securities to the
Initial Purchasers and to each Subsequent Purchaser in the manner
contemplated by this Agreement and the Offering Memorandum to register
the Securities under the 1933 Act or to qualify the Indenture under
the Trust Indenture Act of 1939, as amended (the "1939 Act").
(xxvi) Reporting Company. The Company is subject to the reporting
requirements of Section 13 or Section 15(d) of the ▇▇▇▇ ▇▇▇.
(b) Any certificate signed by any officer of the Company and
delivered to the Initial Purchasers or to counsel for the Initial
Purchasers shall be deemed a representation and warranty by the Company to
the Initial Purchasers as to the matters covered thereby.
SECTION 2. Sale and Delivery to the Initial Purchasers; Closing.
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(a) Securities. On the basis of the representations and
warranties herein contained, and subject to the terms and conditions herein
set forth, the Company agrees to sell to each Initial Purchaser, severally
and not jointly, and each Initial Purchaser, severally and not jointly,
agrees to purchase from the Company, at the price set forth in Schedule B,
the aggregate principal amount of Firm Notes set forth in Schedule A
opposite the name of such Initial Purchaser, plus any additional principal
amount of Firm Notes which such Initial Purchaser may become obligated to
purchase pursuant to the provisions of Section 11 hereof.
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(b) Additional Notes. In addition, on the basis of the
representations and warranties herein contained, and subject to the terms
and conditions herein set forth, the Company hereby grants an option to the
Initial Purchasers, severally and not jointly, to purchase up to aggregate
principal amount of $22,500,000 of Additional Notes, at the price set forth
in Schedule B. The option hereby granted will expire 30 days after the date
hereof and may be exercised in whole or in part from time to time only for
the purpose of covering over-allotments which may be made in connection
with the offering and distribution of the Firm Notes upon notice by the
Representatives to the Company setting forth the number of Additional Notes
as to which the several Initial Purchasers are then exercising the option
and the time and date of payment and delivery for such Additional Notes.
Any such time and date of delivery (a "Date of Delivery") shall be
determined by the Representatives but shall not be later than seven full
business days after the exercise of said option, nor in any event prior to
the Closing Time (as defined below). If the option is exercised as to all
or any portion of the Additional Notes, each of the Initial Purchasers,
acting severally and not jointly, will purchase that proportion of the
total number of Additional Notes then being purchased which the number of
Firm Notes set forth in Schedule A opposite the name of such Initial
Purchaser bears to the total number of Firm Notes, subject in each case to
such adjustments as the Representatives in their discretion shall make to
eliminate any sales or purchases of Notes in denominations in an aggregate
principal amount of less than $1,000.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Securities shall be made at the office of Skadden,
Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, or at such other place as shall be agreed upon by the
Representatives and the Company, at 9:00 A.M. (eastern time) on the third
(fourth, if the pricing occurs after 4:30 P.M. (eastern time)) business day
after the date hereof (unless postponed in accordance with the provisions
of Section 11), or such other time not later than ten business days after
such date as shall be agreed upon by the Representatives and the Company
(such time and date of payment and delivery being herein called the
"Closing Time").
In addition, in the event that any or all of the Additional Notes
are purchased by the Initial Purchasers, payment of the purchase price for,
and delivery of certificates for, such Additional Notes shall be made at
the above-mentioned offices, or at such other place as shall be agreed upon
by the Company and the Representatives, on each Date of Delivery as
specified in the notice from the Representatives to the Company.
Payment shall be made to the Company by wire transfer of
immediately available funds to a bank account designated by the Company,
against delivery to the Representatives for the respective accounts of the
Initial Purchasers of certificates for the Notes to be purchased by them.
It is understood that each Initial Purchaser has authorized the
Representatives, for its account, to accept delivery of, receipt for, and
make payment of the purchase price for, the Notes which it has agreed to
purchase. ▇▇▇▇▇▇▇ ▇▇▇▇▇, individually and not as representative of the
Initial Purchasers, may (but shall not be obligated to) make payment of the
purchase price for the
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Notes to be purchased by any Initial Purchaser whose funds have not been
received by the Closing Time or the relevant Date of Delivery, as the case
may be, but such payment shall not relieve such Initial Purchaser from its
obligations hereunder.
(d) Denominations; Registration. Certificates for the Notes shall
be in such denominations and registered in such names as the
Representatives may request in writing at least one full business day
before the Closing Time or the relevant Date of Delivery, as the case may
be. The certificates representing the Notes shall be made available for
examination and packaging by the Initial Purchasers in The City of New York
not later than 10:00 A.M. on the last business day prior to the Closing
Time or the relevant Date of Delivery, as the case may be.
SECTION 3. Covenants of the Company. The Company covenants with
each Initial Purchaser as follows:
(a) Offering Memorandum. The Company, as promptly as possible,
will furnish to each Initial Purchaser, without charge, such number of
copies of the Preliminary Offering Memorandum, the Final Offering
Memorandum and any amendments and supplements thereto and documents
incorporated by reference therein as such Initial Purchaser may reasonably
request.
(b) Notice and Effect of Material Events. The Company will
immediately notify each Initial Purchaser, and confirm such notice in
writing, of (x) any filing made by the Company of information relating to
the offering of the Securities with any securities exchange or any other
regulatory body in the United States or any other jurisdiction, and (y)
prior to the completion of the placement of the Securities by the Initial
Purchasers as evidenced by a notice in writing from the Initial Purchasers
to the Company, any material changes in or affecting the condition,
financial or otherwise, or the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise
which (i) make any statement in the Offering Memorandum false or misleading
or (ii) are not disclosed in the Offering Memorandum. In such event or if
during such time any event shall occur as a result of which it is
necessary, in the reasonable opinion of any of the Company, its counsel,
the Initial Purchasers or counsel for the Initial Purchasers, to amend or
supplement the Final Offering Memorandum in order that the Final Offering
Memorandum not include any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein not
misleading in the light of the circumstances then existing, the Company
will forthwith amend or supplement the Final Offering Memorandum by
preparing and furnishing to each Initial Purchaser an amendment or
amendments of, or a supplement or supplements to, the Final Offering
Memorandum (in form and substance satisfactory in the reasonable opinion of
counsel for the Initial Purchasers) so that, as so amended or supplemented,
the Final Offering Memorandum will 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 the light of the circumstances existing at the
time it is delivered to a Subsequent Purchaser, not misleading.
12
(c) Amendment to Offering Memorandum and Supplements. The Company
will advise each Initial Purchaser promptly of any proposal to amend or
supplement the Offering Memorandum and will not effect such amendment or
supplement without the consent of the Initial Purchasers. Neither the
consent of the Initial Purchasers, nor the Initial Purchaser=s delivery of
any such amendment or supplement, shall constitute a waiver of any of the
conditions set forth in Section 5 hereof.
(d) Rating of Securities. The Company shall take all reasonable
action necessary to enable Standard & Poor's Ratings Services, a division
of McGraw Hill, Inc. ("S&P"), and ▇▇▇▇▇'▇ Investors Service Inc.
("Moody's") to provide their respective credit ratings of the Securities.
(e) DTC. The Company will cooperate with the Representatives and
use its best efforts to permit the Securities to be eligible for clearance
and settlement through the facilities of DTC.
(f) Use of Proceeds. The Company will use the net proceeds
received by it from the sale of the Securities in the manner specified in
the Offering Memorandum under "Use of Proceeds".
(g) Restriction on Sale of Securities. During a period of 90 days
from the date of the Offering Memorandum, the Company will not, without the
prior written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇, (i) directly or indirectly, offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant
to purchase, lend or otherwise transfer or dispose of any Common Stock or
any securities convertible into or exercisable or exchangeable for Common
Stock or file any registration statement under the 1933 Act with respect to
any of the foregoing or (ii) enter into any swap or any other agreement or
any transaction that transfers, in whole or in part, directly or
indirectly, the economic consequence of ownership of the Common Stock,
whether any such swap or transaction described in clause (i) or (ii) above
is to be settled by delivery of Common Stock or such other securities, in
cash or otherwise. Notwithstanding the foregoing, during such period (i)
the Company may grant stock options pursuant to the Company's existing
stock option plan and (ii) the Company may issue shares of Common Stock
upon the exercise of an option or warrant or the conversion of a security
outstanding on the date hereof.
(h) PORTAL Designation. The Company will use its best efforts to
permit the Securities to be designated PORTAL securities in accordance with
the rules and regulations adopted by the National Association of Securities
Dealers, Inc. ("NASD") relating to trading in the PORTAL Market.
SECTION 4. Payment of Expenses.
--------------------
13
(a) Expenses. The Company will pay all expenses incident to the
performance of its obligations under this Agreement, including (i) the
preparation, printing, delivery to the Initial Purchasers and any filing of
the Offering Memorandum (including financial statements and any schedules
or exhibits and any document incorporated therein by reference) and of each
amendment or supplement thereto, (ii) the preparation, printing and
delivery to the Initial Purchasers of this Agreement, any Agreement among
Initial Purchasers, the Indenture and such other documents as may be
required in connection with the offering, purchase, sale, issuance or
delivery of the Securities, (iii) the preparation, issuance and delivery of
the certificates for the Securities to the Initial Purchasers, including
any transfer taxes, any stamp or other duties payable upon the sale,
issuance and delivery of the Securities to the Initial Purchasers and any
charges of DTC in connection therewith, (iv) the fees and disbursements of
the Company=s counsel, accountants and other advisors, (v) the reasonable
fees and disbursements of counsel for the Initial Purchasers in connection
with the preparation of the Blue Sky Survey, any supplement thereto, (vi)
the fees and expenses of the Trustee, including the fees and disbursements
of counsel for the Trustee in connection with the Indenture and the
Securities, (vii) any fees payable in connection with the rating of the
Securities, and (viii) any fees and expenses payable in connection with the
initial and continued designation of the Securities as PORTAL securities
under the PORTAL Market Rules pursuant to NASD Rule 5322.
(b) Termination of Agreement. If this Agreement is terminated by
the Representatives in accordance with the provisions of Section 5 or
Section 10(a)(i) hereof, the Company shall reimburse the Initial Purchasers
for all of their out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Initial Purchasers.
SECTION 5. Conditions of Initial Purchasers' Obligations. The
obligations of the several Initial Purchasers hereunder are subject to the
accuracy of the representations and warranties of the Company contained in
Section 1 hereof or in certificates of any officer of the Company or any of
its subsidiaries delivered pursuant to the provisions hereof, to the
performance by the Company of its covenants and other obligations
hereunder, and to the following further conditions:
(a) Opinion of Counsel for Company. At the Closing Time, the
Representatives shall have received the favorable opinion, dated as of the
Closing Time, of Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the
Company, in form and substance satisfactory to counsel for the Initial
Purchasers, together with signed or reproduced copies of such letter for
each of the other Initial Purchasers to the effect set forth in Exhibit A-1
hereto and to such further effect as counsel to the Initial Purchasers may
reasonably request.
(b) Opinion of General Counsel of Company. At the Closing Time,
the Representatives shall have received the favorable opinion, dated as of
the Closing Time, of ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇, Vice President and General Counsel
of the Company, in form and substance satisfactory to counsel for the
Initial Purchasers, together with signed or reproduced copies of
14
such letter for each of the other Initial Purchasers to the effect set
forth in Exhibit A-2 hereto and to such further effect as counsel to the
Initial Purchasers may reasonably request.
(c) Opinion of Counsel for Initial Purchasers. At the Closing
Time, the Representatives shall have received the favorable opinion, dated
as of the Closing Time, of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP,
counsel for the Initial Purchasers, together with signed or reproduced
copies of such letter for each of the other Initial Purchasers in form and
substance satisfactory to the Representatives. Such counsel may also state
that, insofar as such opinion involves factual matters, they have relied,
to the extent they deem proper, upon certificates of officers of the
Company and its subsidiaries and certificates of public officials.
(d) Officers' Certificate. At the Closing Time, there shall not
have been, since the date hereof or since the respective dates as of which
information is given in the Offering Memorandum, any Material Adverse
Effect, and the Representatives shall have received a certificate of the
President or a Vice President of the Company and of the chief financial or
chief accounting officer of the Company, dated as of the Closing Time, to
the effect that (i) there has been no such Material Adverse Effect, (ii)
the representations and warranties in Section 1 hereof are true and correct
with the same force and effect as though expressly made at and as of the
Closing Time, and (iii) the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or
prior to the Closing Time.
(e) Accountants' Comfort Letter. At the time of the execution of
this Agreement, the Representatives shall have received from Deloitte &
Touche LLP a letter dated such date, in form and substance satisfactory to
the Representatives, together with signed or reproduced copies of such
letter for each of the other Initial Purchasers containing statements and
information of the type ordinarily included in accountants' "comfort
letters" to Initial Purchasers with respect to the financial statements and
certain financial information contained in the Offering Memorandum.
(f) Bring-down Comfort Letter. At the Closing Time, the
Representatives shall have received from Deloitte & Touche LLP a letter,
dated as of the Closing Time, to the effect that they reaffirm the
statements made in the letter furnished pursuant to subsection (e) of this
Section, except that the specified date referred to shall be a date not
more than three business days prior to the Closing Time.
(g) Maintenance of Rating. At the Closing Time and on any Date of
Delivery, the Notes shall be rated at least Baa3 by ▇▇▇▇▇=s and BB+ by S&P,
and the Company shall have delivered to the Representatives a letter dated
the Closing Time or such Date of Delivery, as applicable, from each such
rating agency, or other evidence satisfactory to the Representatives,
confirming that the Notes have such ratings; and since the date of this
Agreement, there shall not have occurred a downgrading in the rating
assigned to the Notes or any of the Company's other debt securities by any
"nationally recognized statistical rating agency", as that term is defined
by the Commission for purposes of Rule 436(g)(2) under the 1933 Act, and
15
no such securities rating agency shall have publicly announced that it has
under surveillance or review, with possible negative implications, its
rating of the Notes or any of the Company=s other debt securities.
(h) PORTAL. At the Closing Time, the Securities shall have been
designated for trading on PORTAL.
(i) Conditions to Purchase of Additional Notes. In the event that
the Initial Purchasers exercise their option provided in Section 2(b)
hereof to purchase all or any portion of the Additional Notes, the
representations and warranties of the Company contained herein and the
statements in any certificates furnished by the Company or any subsidiary
of the Company hereunder shall be true and correct as of each Date of
Delivery and, at the relevant Date of Delivery, the Representatives shall
have received:
(i) Officers' Certificate. A certificate, dated such Date of Delivery,
of the President or a Vice President of the Company and of the chief
financial or chief accounting officer of the Company confirming that the
certificate delivered at the Closing Time pursuant to Section 5(d) hereof
remains true and correct as of such Date of Delivery.
(ii) Opinion of Counsel for Company. The favorable opinion of each of
Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Company, and
▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇, Vice President and General Counsel of the Company, in
form and substance satisfactory to counsel for the Initial Purchasers,
dated such Date of Delivery, relating to the Additional Notes to be
purchased on such Date of Delivery and otherwise to the same effect as the
opinions required by Section 5(a) and 5 (b) hereof, respectively.
(iii) Opinion of Counsel for Initial Purchasers. The favorable opinion
of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Initial
Purchasers, dated such Date of Delivery, relating to the Additional Notes
to be purchased on such Date of Delivery and otherwise to the same effect
as the opinion required by Section 5(c) hereof.
(iv) Bring-down Comfort Letter. A letter from Deloitte & Touche LLP,
in form and substance satisfactory to the Representatives and dated such
Date of Delivery, substantially in the same form and substance as the
letter furnished to the Representatives pursuant to Section 5(f) hereof,
except that the "specified date" in the letter furnished pursuant to this
paragraph shall be a date not more than five days prior to such Date of
Delivery.
(j) Additional Documents. At the Closing Time and at each Date of
Delivery, counsel for the Initial Purchasers shall have been furnished with
such documents and opinions as they may reasonably require for the purpose
of enabling them to pass upon the issuance and sale of the Securities as
herein contemplated, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the conditions,
herein
16
contained; and all proceedings taken by the Company in connection with the
issuance and sale of the Securities as herein contemplated shall be
satisfactory in form and substance to the Representatives and counsel for
the Initial Purchasers.
(k) Registration Rights Agreement. At the Closing Time, the
Company and the Initial Purchasers shall have entered into the Registration
Rights Agreement, and the Registration Rights Agreement shall be in full
force and effect.
(l) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled,
this Agreement, or, in the case of any condition to the purchase of
Additional Notes on a Date of Delivery which is after the Closing Time, the
obligations of the several Initial Purchasers to purchase the relevant
Additional Notes, may be terminated by the Representatives by notice to the
Company at any time at or prior to Closing Time or such Date of Delivery,
as the case may be, and such termination shall be without liability of any
party to any other party except as provided in Section 4 and except that
Sections 1, 7, 8 and 9 shall survive any such termination and remain in
full force and effect.
SECTION 6. Subsequent Offers and Resales of the Securities.
------------------------------------------------
(a) Offer and Sale Procedures. Each of the Initial Purchasers and
the Company hereby establish and agree to observe the following procedures
in connection with the offer and sale of the Securities:
(i) Offers and Sales only to Qualified Institutional Buyers. Offers
and sales of the Securities shall only be made to persons whom the offeror
or seller reasonably believes to be qualified institutional buyers, as
defined in Rule 144A under the 1933 Act ("Qualified Institutional Buyers").
(ii) No General Solicitation. No general solicitation or general
advertising (within the meaning of Rule 502(c) under the ▇▇▇▇ ▇▇▇) will be
used in the United States in connection with the offering or sale of the
Securities.
(iii) Purchases by Non-Bank Fiduciaries. In the case of a non-bank
Subsequent Purchaser of a Security acting as a fiduciary for one or more
third parties, in connection with an offer and sale to such purchaser
pursuant to clause (i) above, each third party shall, in the judgment of
the applicable Initial Purchaser, be a Qualified Institutional Buyer.
(iv) Subsequent Purchaser Notification. Each Initial Purchaser will
take reasonable steps to inform, and cause each of its U.S. Affiliates to
take reasonable steps to inform, persons acquiring Securities from such
Initial Purchaser or affiliate, as the case may be, in the United States
that the Securities (A) have not been and will not be registered under the
1933 Act, (B) are being sold to them without registration under the
17
1933 Act in reliance on Rule 144A or in accordance with another exemption
from registration under the 1933 Act, as the case may be, and (C) may not
be offered, sold or otherwise transferred except (1) to the Company, (2)
outside the United States in accordance with Regulation S, or (3) inside
the United States in accordance with (x) Rule 144A to a person whom the
seller reasonably believes is a Qualified Institutional Buyer that is
purchasing such Securities for its own account or for the account of a
Qualified Institutional Buyer to whom notice is given that the offer, sale
or transfer is being made in reliance on Rule 144A or (y) pursuant to
another available exemption from registration under the 1933 Act.
(v) Restrictions on Transfer. The transfer restrictions and the other
provisions set forth in the Offering Memorandum under the heading "Notice
to Investors", including the legend required thereby, shall apply to the
Securities except as otherwise agreed by the Company and the Initial
Purchasers.
(vi) Delivery of Offering Memorandum. Each Initial Purchaser will
deliver to each purchaser of the Securities from such Initial Purchaser, in
connection with its original distribution of the Securities, a copy of the
Offering Memorandum, as amended and supplemented at the date of such
delivery.
(b) Covenants of the Company. The Company covenants with each
Initial Purchaser as follows:
(i) Integration. The Company agrees that it will not and will cause
its Affiliates not to, directly or indirectly, solicit any offer to buy,
sell or make any offer or sale of, or otherwise negotiate in respect of,
securities of the Company of any class if, as a result of the doctrine of
"integration" referred to in Rule 502 under the 1933 Act, such offer or
sale would render invalid (for the purpose of (i) the sale of the
Securities by the Company to the Initial Purchasers, (ii) the resale of the
Securities by the Initial Purchasers to Subsequent Purchasers or (iii) the
resale of the Securities by such Subsequent Purchasers to others) the
exemption from the registration requirements of the 1933 Act provided by
Section 4(2) thereof or by Rule 144A thereunder or otherwise.
(ii) Rule 144A Information. The Company agrees that, in order to
render the Securities eligible for resale pursuant to Rule 144A under the
1933 Act, while any of the Securities remain outstanding, it will make
available, upon request, to any holder of Securities or prospective
purchasers of Securities the information specified in Rule 144A(d)(4),
unless the Company furnishes information to the Commission pursuant to
Section 13 or 15(d) of the 1934 Act.
(iii) Restriction on Repurchases. Until the expiration of two years
after the original issuance of the Securities, the Company will not, and
will cause its Affiliates not to, resell any Securities which are
"restricted securities" (as such term is defined under
18
Rule 144(a)(3) under the 1933 Act), whether as beneficial owner or
otherwise (except as agent acting as a securities broker on behalf of and
for the account of customers in the ordinary course of business in
unsolicited broker's transactions).
(c) Qualified Institutional Buyer. Each Initial Purchaser
severally and not jointly represents and warrants to, and agrees with, the
Company that it is a Qualified Institutional Buyer and an "accredited
investor" within the meaning of Rule 501(a) under the 1933 Act.
SECTION 7. Indemnification.
----------------
(a) Indemnification of Initial Purchasers. The Company agrees to
indemnify and hold harmless each Initial Purchaser and each person, if any,
who controls any Initial Purchaser 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 Preliminary Offering
Memorandum or the Final Offering Memorandum (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
7(d) below) any such settlement is effected with the written consent of the
Company; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by ▇▇▇▇▇▇▇ ▇▇▇▇▇), 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 (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to
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 by any Initial Purchaser through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for
use in any Preliminary Offering Memorandum or the Final Offering Memoran-
19
dum (or any amendment or supplement thereto) and provided, further, that
the Company shall not be liable to any Initial Purchaser under the
indemnity agreement in this paragraph (a) with respect to any Preliminary
Offering Memorandum to the extent that any such loss, claim, damage or
liability of such Initial Purchaser results from the fact that such Initial
Purchaser sold Notes to a person as to whom it shall be established that
there was not sent or given, at or prior to the written confirmation of
such sale, a copy of the Final Offering Memorandum as then amended or
supplemented in any case where such delivery is required by the 1933 Act if
the Company has previously furnished copies thereof in sufficient quantity
to such Initial Purchaser and the loss, claim, damage or liability of such
Initial Purchaser results from an untrue statement or omission or a
material fact contained in the Preliminary Offering Memorandum which was
identified in writing at such time to such Initial Purchaser and corrected
in the Final Offering Memorandum as then amended or supplemented.
(b) Indemnification of Company. Each Initial Purchaser severally
agrees to indemnify and hold harmless the Company, its directors and
officers and each person, if any, who controls the Company 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 subsection (a) of this Section, as incurred, but
only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in any Preliminary Offering Memorandum or the
Final Offering Memorandum (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by such Initial Purchaser through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use
in any Preliminary Offering Memorandum or the Final Offering Memorandum(or
any amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party
shall give notice as promptly as reasonably practicable to each
indemnifying party of any action 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 the case of
parties indemnified pursuant to Section 7(a) above, counsel to the
indemnified parties shall be selected by ▇▇▇▇▇▇▇ ▇▇▇▇▇, and, in the case of
parties indemnified pursuant to Section 7(b) above, counsel to the
indemnified parties shall be selected by the Company. An indemnifying party
may participate at its own expense in the defense of any such action;
provided, however, that counsel to the indemnifying party shall not (except
with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable for
fees and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions
in the same jurisdiction arising out of the same general allegations or
circumstances. No indemnifying party shall, without the prior written
consent of the indemnified parties, 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 whatsoever in respect of which indemnification or contribution
could be sought under this Section or Section 8 hereof (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of
each indemnified party from all liability arising out of
20
such litigation, investigation, proceeding or claim and (ii) 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.
(d) Settlement without Consent if Failure to Reimburse. 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 it shall be liable for any settlement of the
nature contemplated by Section 7(a) and 7(b) above, effected without its
written consent if (i) such settlement is entered into more than 45 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.
SECTION 8. Contribution. If the indemnification provided for in
Section 7 hereof 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, (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Initial Purchasers
on the other hand from the offering of the Securities pursuant to this
Agreement or (ii) if the allocation provided by clause (i) is not permitted
by applicable law, in such proportion as is appropriate to reflect not only
the relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and of the Initial Purchasers 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 benefits received by the Company on the one hand and
the Initial Purchasers on the other hand in connection with the offering of
the Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (before deducting expenses) received
by the Company and the total underwriting discount received by the Initial
Purchasers, bear to the aggregate initial offering price of the Securities.
The relative fault of the Company on the one hand and the Initial
Purchasers 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 or by the Initial Purchasers
and the parties= relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company and the Initial Purchasers agree that it would not be
just and equitable if contribution pursuant to this Section 8 were
determined by pro rata allocation (even if the Initial Purchasers were
treated as one entity for such purpose) or by any other method of
21
allocation which does not take account of the equitable considerations
referred to above in this Section 8. The aggregate amount of losses,
liabilities, claims, damages and expenses incurred by an indemnified party
and referred to above in this Section 8 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.
Notwithstanding the provisions of this Section 8, no Initial
Purchaser shall be required to contribute any amount in excess of the
amount by which the total price at which the Securities purchased and sold
by it hereunder exceeds the amount of any damages which such Initial
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 ▇▇▇▇ ▇▇▇) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 8, each person, if any, who controls
an Initial Purchaser 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 Initial Purchaser and each director and officer of the Company, and
each person, if any, who controls the Company 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 Initial Purchasers= respective
obligations to contribute pursuant to this Section 8 are several in
proportion to the principal amount of Securities set forth opposite their
respective names in Schedule A hereto and not joint.
SECTION 9. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company or any of its
subsidiaries submitted pursuant hereto shall remain operative and in full
force and effect, regardless of any investigation made by or on behalf of
any Initial Purchaser or controlling person, or by or on behalf of the
Company, and shall survive delivery of the Securities to the Initial
Purchasers.
SECTION 10. Termination of Agreement.
-------------------------
(a) Termination; General. The Representatives may terminate this
Agreement, by notice to the Company, at any time at or prior to the Closing
Time (i) if there has been, since the time of execution of this Agreement
or since the respective dates as of which information is given in the
Offering Memorandum, any Material Adverse Effect or (ii) if there has
occurred any material adverse change in the financial markets in the United
States or the international financial markets, any outbreak of hostilities
or escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or international
political, financial or
22
economic conditions, in each case the effect of which is such as to make
it, in the judgment of the Representatives, impracticable to market the
Securities or to enforce contracts for the sale of the Securities, or (iii)
if trading in any securities of the Company has been suspended or
materially limited by the Commission or the New York Stock Exchange, or if
trading generally on the American Stock Exchange or the New York Stock
Exchange or in the NASDAQ System has been suspended or materially limited,
or minimum or maximum prices for trading have been fixed, or maximum ranges
for prices have been required, by any of said exchanges or by such system
or by order of the Commission, the National Association of Securities
Dealers, Inc. or any other governmental authority, or (iv) if a banking
moratorium has been declared by either Federal or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any
other party except as provided in Section 4 hereof, and provided further
that Sections 1, 7, 8 and 9 shall survive such termination and remain in
full force and effect.
SECTION 11. Default by One or More of the Initial Purchasers. If
one or more of the Initial Purchasers shall fail at the Closing Time or a
Date of Delivery to purchase the Securities which it or they are obligated
to purchase under this Agreement (the "Defaulted Securities"), the
Representatives shall have the right, but not the obligation, within 24
hours thereafter, to make arrangements for one or more of the
non-defaulting Initial Purchasers, or any other initial purchasers, to
purchase, each severally and not jointly, all, but not less than all, of
the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, the Representatives shall not have
completed such arrangements within such 24-hour period, then this Agreement
or, with respect to any Date of Delivery which occurs after the Closing
Time, the obligation of the Initial Purchasers to purchase and of the
Company to sell the Additional Notes to be purchased and sold on such Date
of Delivery shall terminate without liability on the part of any
non-defaulting Initial Purchaser.
No action pursuant to this Section shall relieve any defaulting
Initial Purchaser from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement or, in the case of a Date of Delivery which
is after the Closing Time, which does not result in a termination of the
obligation of the Initial Purchasers to purchase and of the Company to sell
the Additional Notes to be purchased and sold on such Date of Delivery, as
the case may be, either the Representatives or the Company shall have the
right to postpone the Closing Time or the relevant Date of Delivery, as the
case may be, for a period not exceeding seven days in order to effect any
required changes in the Offering Memorandum or in any other documents or
arrangements.
SECTION 12. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given
if mailed or transmitted by any standard form of telecommunication. Notices
to the Initial Purchasers shall be directed to the Representatives at ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, attention of ▇▇▇▇▇
▇▇▇▇▇▇▇; notices to the Company shall be directed to it at ▇▇▇▇
▇▇▇▇▇▇-▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention of ▇▇▇▇▇ ▇.
▇▇▇▇▇, ▇▇, Vice President, General Counsel and Secretary.
SECTION 13. Parties. This Agreement shall inure to the benefit of
and be binding upon the Initial Purchasers and the Company and their
respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation,
other than the Initial Purchasers and the Company and their respective
successors and the controlling persons and officers and directors referred
to in Sections 7 and 8 and their heirs and legal representatives, any legal
or equitable right, remedy or claim under or in respect of this Agreement
or any provision herein contained. This Agreement and all conditions and
provisions hereof are intended to be for the sole and exclusive benefit of
the Initial Purchasers and the Company and their respective successors, and
said controlling persons and officers and directors and their heirs and
legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Securities from any Initial Purchaser shall be
deemed to be a successor by reason merely of such purchase.
SECTION 14. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 15. Effect of Headings. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not
affect the construction hereof.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a
binding agreement between the Initial Purchasers and the Company in
accordance with its terms.
Very truly yours,
COMMSCOPE, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------
Title: Executive Vice President
and Chief Financial Officer
CONFIRMED AND ACCEPTED,
as of the date first above written:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
CIBC WORLD MARKETS CORP.
By: ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------
Authorized Signatory
For themselves and as Representatives of the other Initial Purchasers named
in Schedule A hereto.
SCHEDULE A
Principal
Amount
Name of Initial Purchaser of Securities
-------------
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated.................. $ 90,000,000
CIBC World Markets Corp............................ 60,000,000
-------------
Total.............................................. $150,000,000
=============
SCHEDULE B
CommScope, Inc.
$150,000,000 Convertible Subordinated Notes due 2006
1. The initial public offering price of the Securities shall be 100%
of the principal amount thereof, plus accrued interest, if any, from the
date of issuance.
2. The purchase price to be paid by the Initial Purchasers for the
Securities shall be 97.5% of the principal amount thereof.
3. The interest rate on the Securities shall be 4% per annum.
SCHEDULE C
List of Subsidiaries
CommScope, Inc. of North Carolina Incorporated: North Carolina
Exhibit A-1
FORM OF OPINION OF ▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ TO BE DELIVERED PURSUANT TO SECTION 5(a)
212-859-8076
December 15, 1999 (FAX: ▇▇▇-▇▇▇-▇▇▇▇)
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ IncorporatedCIBC
WORLD MARKETS CORP. as Representatives of the several Initial Purchasers
c/o Merrill ▇▇▇▇▇ & Co.▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
IncorporatedNorth TowerWorld Financial ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
RE: COMMSCOPE, INC.
Ladies and Gentlemen:
We are acting as special counsel to CommScope, Inc., a Delaware
corporation (the "Company"), in connection with the Company's offering and
sale of $150,000,000 in aggregate principal amount of its 4% Convertible
Subordinated Notes due 2006 (the "Notes") (plus up to $22,500,000 in
additional principal amount issuable pursuant to the Initial Purchaser=s
over-allotment option) pursuant to the terms of a Purchase Agreement, dated
December 9, 1999 (the "Purchase Agreement"), by and among the Company,
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and
CIBC World Markets Corp. This opinion is delivered to you pursuant to
Section 5(a) of the Purchase Agreement. All capitalized terms used herein
that are defined in, or by reference in, the Purchase Agreement have the
meanings assigned to such terms therein, or by reference therein, unless
otherwise defined herein. With your permission, all assumptions and
statements of reliance herein have been made without any independent
investigation or verification on our part except to the extent otherwise
expressly stated, and we
Sch A-1
express no opinion with respect to the subject matter or accuracy of such
assumptions or items relied upon.
In connection with this opinion, we have (i) investigated such
questions of law, (ii) examined originals or certified, conformed or
reproduction copies of such agreements, instruments, documents and records
of the Company, such certificates of public officials and such other
documents and (iii) received such information from officers and
representatives of the Company, as we have deemed necessary or appropriate
for the purposes of this opinion.
In all such examinations, we have assumed the legal capacity of all
natural persons, the genuineness of all signatures, the authenticity of
original and certified documents and the conformity to original or
certified documents of all copies submitted to us as conformed or
reproduction copies. As to various questions of fact relevant to the
opinions expressed herein, we have relied upon, and assume the accuracy of,
representations and warranties contained in the Purchase Agreement and
certificates and oral or written statements and other information of or
from representatives of the Company and others and assume compliance on the
part of all parties to the Purchase Agreement, the Registration Rights
Agreement, dated as of December 15, 1999 (the "Registration Rights
Agreement"), by and among the Company and the Initial Purchasers, and the
Indenture, dated as of December 15, 1999 (the "Indenture"), among the
Company and First Union National Bank, as trustee (the "Trustee") with
their covenants and agreements contained therein.
To the extent it may be relevant to the opinions expressed herein, we
have assumed that (i) the Trustee has the power and authority to enter into
and perform the Indenture, (ii) the Indenture has been duly authorized,
executed and delivered by the Trustee and constitutes a valid and binding
obligation of the Trustee, enforceable against the Trustee in accordance
with its terms, (iii) the Notes have been duly authenticated and delivered
by the Trustee and (iv) the Initial Purchasers have the power and authority
to enter into and perform the Registration Rights Agreement and that the
Registration Rights Agreement has been duly authorized, executed and
delivered by each of the Initial Purchasers and constitutes a valid and
binding obligation of each of the Initial Purchasers, enforceable against
each of the Initial Purchasers in accordance with its terms.
Based upon the foregoing and subject to the limitations,
qualifications and assumptions set forth herein, we are of the opinion
that:
(i) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws
of the State of Delaware, with corporate power and
authority to own, lease and operate its properties and
conduct its business as described in the Offering
Memorandum and to enter into and perform its obligation
under the Purchase Agreement;
Sch A-2
(ii) the Notes are in the form contemplated by the Indenture,
have been duly authorized by the Company and, when executed
by the Company and authenticated by the Trustee in
accordance with the provisions of the Indenture and
delivered to and paid for by the Initial Purchasers in
accordance with the terms of the Purchase Agreement, will
be entitled to the benefits of the Indenture and will be
valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms;
(iii) the Indenture has been duly authorized, executed and
delivered by the Company and is a valid and binding
agreement of the Company, enforceable against the Company
in accordance with its terms;
(iv) the Securities and the Indenture conform in all material
respects to the descriptions thereof contained in the
Offering Memorandum;
(v) the Purchase Agreement has been duly authorized, executed
and delivered by the Company;
(vi) the Registration Rights Agreement has been duly authorized,
executed and delivered by the Company and is a valid and
binding agreement of the Company, enforceable against the
Company in accordance with its terms;
(vii) the descriptions under the captions "Description of Capital
Stock," "Description of Notes" and "Certain United States
Federal Income Tax Consequences" in the Offering
Memorandum, insofar as such descriptions constitute a
summary of the legal matters or documents referred to
therein, fairly summarize the matters referred to therein;
(viii) no filing, consent, approval, authorization or order of or
with any court or governmental agency or body of the States
of New York or Delaware or the United States of America is
required to be made or obtained by the Company for the
performance of its obligations under the Purchase
Agreement, the Registration Rights Agreement or the
Indenture, or the consummation by the Company of the
transactions therein contemplated, except such as have been
made or obtained and such as may be required under federal
and state securities or Blue Sky laws in connection with
the purchase and distribution of the Securities by the
Initial Purchasers or by the federal and state securities
laws in connection with the registration obligations under
the Registration Rights Agreement;
(ix) the Company is not an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended;
Sch A-3
(x) it is not necessary in connection with the offer, sale and
delivery of the Notes to the Initial Purchasers in the
manner contemplated by the Purchase Agreement to qualify
the Indenture under the TIA; and
(xi) no registration under the Act of the Notes is required for
the sale of the Notes to the Initial Purchasers and to each
Subsequent Purchaser as contemplated by the Purchase
Agreement and the Offering Memorandum assuming (i) that
each Initial Purchaser is a QIB, (ii) the accuracy of, and
compliance with, the Initial Purchasers' representations,
warranties, and covenants contained in Section 6 of the
Purchase Agreement, and (iii) the accuracy of the
representations of the Company set forth in Sections 1(a)
(xxii), (xxiii) and (xxiv) of the Purchase Agreement.
In the course of the preparation by the Company of the Offering
Memorandum, we participated in conferences with certain of the officers and
representatives of, and the independent public accountants for, the Company
at which the contents of the Offering Memorandum were discussed. Between
the date of the Offering Memorandum and the time of delivery of this
opinion, we participated in additional conferences with certain of the
officers and representatives of, and independent public accountants for,
the Company at which the contents of the Offering Memorandum were discussed
to a limited extent. Given the limitations inherent in the independent
verification of factual matters and the character of determinations
involved in the process, we are not passing upon or assuming any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Offering Memorandum, except to the extent provided in
paragraph (vii) above. Subject to the foregoing and on the basis of the
information gained in the performance of the services referred to herein,
including information obtained from the officers and other representatives
of, and the independent public accountants for, the Company, no facts have
come to our attention that cause us to believe that the Offering
Memorandum, as of its date, contained any untrue statement of a material
fact or omitted 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. Also, subject to the foregoing, no facts have come to
our attention in the course of the proceedings described in the second
sentence of this paragraph that cause us to believe that the Offering
Memorandum, as of the date and time of the delivery of this opinion,
contains an untrue statement of a material fact or omits to the state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading. In
each case, however, we express no view or belief, with respect to financial
statements, or the notes or schedules thereto, or other financial data
included in or omitted from the Offering Memorandum.
The opinions set forth above are subject to the following
qualifications:
(A) We express no opinion as to the validity, binding effect or
enforceability of any provision of the Indenture and the Registration
Rights Agreement relating to indemnification or contribution.
Sch A-4
(B) We express no opinion as to the validity, binding effect or
enforceability of any provision of the Indenture, Registration Rights
Agreement or the Notes:
(1) containing any purported waiver, release, variation,
disclaimer, consent or other agreement of similar effect
(all of the foregoing, collectively, a "Waiver") by the
Company under any of such agreements to the extent limited
by provisions of applicable law (including judicial
decisions), or to the extent that such a Waiver applies to a
right, claim, duty, defense or ground for discharge
otherwise existing or occurring as a matter of law
(including judicial decisions), except to the extent that
such a Waiver is effective under, and is not prohibited by
or void or invalid under provisions of applicable law
(including judicial decisions);
(2) related to choice of governing law to the extent that the
validity, binding effect or enforceability of any such
provision is to be determined by any court other than a
court of the State of New York or a federal district court
sitting in the State of New York and applying the law of the
State of New York;
(3) specifying that provisions thereof may be waived only in
writing, to the extent that an oral agreement or an implied
agreement by trade practice or course of conduct has been
created that modifies any provision of such agreement; and
(4) purporting to give any person or entity the power to
accelerate obligations without any notice to the obligor.
(C) Our opinions above are subject to the following:
(1) bankruptcy, insolvency, reorganization, moratorium or other
laws now or hereafter in effect affecting creditors' rights
generally;
(2) general principles of equity, including, without limitation,
standards of materiality, good faith, fair dealing and
reasonableness equitable defenses and limits as to
availability of equitable remedies (whether such principles
are considered in a proceeding in equity or at law); and
(3) the application of any applicable fraudulent conveyance,
fraudulent transfer, fraudulent obligation, or preferential
transfer law or any law governing the distribution of assets
of any person now or hereafter in effect affecting
creditors' rights and remedies generally.
Sch A-5
The opinions expressed herein are limited to the federal laws of the
United States of America, the laws of the State of New York and, to the
extent relevant to the opinion expressed herein, the Delaware General
Corporation Law, as currently in effect. The opinions expressed herein are
given as of the date hereof, and we undertake no obligation to supplement
this letter if any applicable laws change after the date hereof or if we
become aware of any facts that might change the opinions expressed herein
after the date hereof or for any other reason.
The opinions expressed herein are solely for your benefit in
connection with the Purchase Agreement and may not be relied on in any
manner or for any purpose by any other person or entity and may not be
quoted in whole or in part without our prior written consent.
Very truly yours,
FRIED, FRANK, HARRIS, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
By:
-----------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇
Sch ▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF OPINION OF ▇▇▇▇▇ ▇. ▇▇▇▇▇, IITO BE DELIVERED PURSUANT TO SECTION 5(b)
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
CIBC WORLD MARKETS CORP. as Representatives of the several Initial Purchasers
c/o Merrill ▇▇▇▇▇ & Co.▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
North Tower, World ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Dear Sirs and Mesdames:
I am General Counsel of CommScope, Inc., a Delaware corporation
(the "Company"). This opinion is being delivered to you pursuant to Section
5(b) of the Purchase Agreement, dated December 9, 1999 (the "Purchase
Agreement"), among the Company, ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce,
▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and CIBC World Markets Corp. All capitalized
terms used herein that are defined in the Purchase Agreement have the
respective meanings set forth therein, unless otherwise defined herein.
With your permission, with respect to the opinions expressed herein, all
assumptions and statements of reliance herein have been made without any
independent investigation or verification on my part, except to the extent
otherwise expressly stated, and I express no opinion with respect to the
subject matter or accuracy of such assumptions or items relied upon.
I, or outside attorneys under my direction and control, have
examined the originals, or certified, conformed or reproduction copies, of
all such records, agreements, instruments and documents as I have deemed
relevant or necessary as the basis for the opinions hereinafter expressed.
In all such examinations, I have assumed the authenticity of all records,
agreements and documents and the truth of all representations set forth
therein, the genuineness of all signatures on original or certified copies
and the conformity to original or certified copies of all copies submitted
to me as conformed or reproduction copies. As to various questions of fact
relevant to such opinion, I have relied upon, and assumed the accuracy of,
certificates and oral or written statements and other information of or
from public officials, officers or representatives of the Company, and
others.
Sch A-7
Based upon the foregoing, and subject to the limitations,
qualifications, and assumptions set forth herein, I am of the opinion that:
(1) The Company is duly qualified to transact business as a
foreign corporation, and is in good standing, under the laws of each
jurisdiction in which it owns or leases properties or conducts
business so as to require such qualification, or is subject to no
material liability or disability by reason of failure to be so
qualified in any such jurisdiction.
(2) The Company has an authorized capitalization as set forth in
the Offering Memorandum in the column entitled "Actual" under the
caption "Capitalization", and all of the issued shares of capital
stock of the Company have been duly and validly authorized and issued,
are fully paid and nonassessable, and none of the outstanding shares
of capital stock of the Company was issued in violation of the
preemptive or other similar rights of any security holder of the
Company.
(3) Each Subsidiary has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power and authority
to own, lease and operate its properties and to conduct its business
as described in the Offering Memorandum and is duly qualified to
transact business, as a foreign corporation, and is in good standing,
in each jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of
business, except where the failure to qualify or to be in good
standing would not result in a Material Adverse Effect, except as
otherwise disclosed in the Offering Memorandum; all of the issued and
outstanding capital stock of each Subsidiary has been duly authorized
and validly issued, is fully paid and non-assessable and, to the best
of my knowledge, is owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity.
(4) The Conversion Shares have been duly authorized and validly
reserved for issuance upon conversion of the Notes by all necessary
corporate action of the Company
Sch A-8
and, when duly issued by the Company upon such conversion, will be
validly issued, fully paid and nonassessable; no holder thereof will
be subject to personal liability for obligations of the Company solely
by reason of being such a holder; and the issuance of the Conversion
Shares will not be subject to preemptive or similar rights.
(5) To the best of my knowledge and other than as set forth in
the Offering Memorandum, there are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries is
a party or of which any property of the Company or any of its
subsidiaries is the subject which, individually or in the aggregate,
would have, or may reasonably be expected to have, a Material Adverse
Effect; and, to the best of my knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened
by others.
(6) To the best of my knowledge, (a) neither the Company nor any
of its subsidiaries is in violation of its respective Certificate of
Incorporation or By-laws and (b) no default by the Company or any of
its subsidiaries exists in the due performance or observance of any
obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other
agreement or instrument described or referred to in the Offering
Memorandum, except as would not have or reasonably be expected to have
a Material Adverse Effect.
(7) The execution, delivery and performance of the Purchase
Agreement, the DTC Agreement, the Indenture, the Registration Rights
Agreement and the Notes and the consummation of the transactions
contemplated in the Purchase Agreement and in the Offering Memorandum
(including the use of the proceeds from the sale of the Securities as
described in the Offering Memorandum under the caption "Use Of
Proceeds") and compliance by the Company with its obligations under
the Purchase Agreement, the Indenture, the Registration Rights
Agreement and the Notes do not and will not conflict with or result in
a breach or violation of any of the terms or provisions of, or
constitute a default under, any Agreement and Instruments which are
material to the Company and its subsidiaries taken as a whole, nor
will such action result in any violation of the provisions
Sch A-9
of the Certificate of Incorporation or By-laws of the Company or any
statute or any order, rule or regulation known to me of any court or
governmental agency or body having jurisdiction over the Company or
any of the subsidiaries or any of their properties.
The opinions set forth above are subject to the following
qualifications:
A. With respect to the opinion expressed in paragraphs 6 and 7
above: (i) I have made no independent investigation as to
whether the Agreements and Instruments which are material to
the Company and its subsidiaries, taken as a whole, and
which are governed by the laws of any jurisdiction other
than the State of North Carolina, will be enforced as
written under the laws of such jurisdiction; (ii) I express
no opinion with respect to any conflict with or any breach
or violation of, or default under, any indenture, mortgage,
deed of trust, loan agreement or other agreement or
instrument not ascertainable from the face of such
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument, or arising under or based upon any
cross-default provisions insofar as such conflict, breach,
violation or default related to a default under an agreement
not known to me to which the Company or any of its
subsidiaries is a party or by which the Company or any of
its subsidiaries is bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject;
and (iii) I have relied as to matters of fact upon, and
assumed the accuracy of, a certificate of a senior financial
officer of the Company, attached thereto as Annex A, with
respect to any covenant of a financial or numerical nature
or that requires computation in any indenture, mortgage,
deed of trust, loan agreement or other agreement or
instrument known to me to which the Company or any of its
subsidiaries is a party or by which the Company or any of
its subsidiaries is bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject.
Sch A-10
B. My opinions are subject to (i) applicable bankruptcy,
insolvency, moratorium, fraudulent conveyance and other
similar laws affecting creditors' rights and remedies
generally, and (ii) general principles of equity including,
without limitation, standards of materiality, good faith,
fair dealing and reasonableness, equitable defenses and
limits as to the availability of equitable remedies, whether
such principles are considered in a proceeding at law or in
equity.
C. The opinions expressed above are subject to the effect of,
and I express no opinions herein as to, the application of
the securities or Blue Sky laws of any state of the United
States.
The opinions expressed herein are limited to the laws of the
United States of America and the laws of the State of North Carolina and,
to the extent relevant to the opinions expressed herein, the General
Corporation Law of the State of Delaware, each as currently in effect. The
opinions expressed herein are given as of the date hereof, and I undertake
no obligation to supplement this letter if any applicable laws change after
the date hereof or if I become aware of any facts that might change the
opinions expressed herein after the date hereof or for any other reason.
The opinions expressed herein are solely for your benefit in
connection with the Purchase Agreement and may not be relied on in any
manner or for any purpose by any other person or entity and may not be
quoted in whole or in part without my prior written consent.
Very truly yours,
▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇
General Counsel
cc: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Sch A-11
FORM OF FINANCIAL OFFICER'S CERTIFICATE
Annex A to Exhibit A
The undersigned, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, the Executive Vice
President and Chief Financial Officer of CommScope, Inc., a Delaware
corporation (the "Company"), hereby certifies, solely as a financial
officer of the Company and not personally, that the compliance by the
Company with all of the provisions of the purchase agreement, dated as of
December 9, 1999 (the "Purchase Agreement"), among the Company, ▇▇▇▇▇▇▇
▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, and CIBC
World Markets Corp., the DTC Agreement, the Indenture, the Registration
Rights Agreement and the Notes and the consummation of the transactions
therein contemplated will not conflict with or result in a breach or a
violation of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to the undersigned to which the Company or
any of its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject and which is material to the
Company and its subsidiaries.
Capitalized terms used herein without definitions shall have the
meanings ascribed to them in the Purchase Agreement.
Dated: December __, 1999
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Executive Vice President
and Chief Financial Officer
Annex A to Exhibit A
Exhibit B
Form of Registration Rights Agreement