EXHIBIT 3
AMENDMENT NO. 2
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AMENDENT NO. 2, dated as of November 15, 2001 ("Amendment No. 2"), to
the Rights Agreement, dated as of June 12, 1997, as amended by Amendment
No. 1, dated as of June 14, 1999, between CommScope, Inc., a Delaware
corporation (the "Company"), and Mellon Investor Services LLC, a New Jersey
limited liability company (formerly known as ChaseMellon Shareholder
Services, L.L.C.) (the "Rights Agent") (as amended, the "Rights
Agreement").
WHEREAS, pursuant to Section 27 of the Rights Agreement, the Company
and the Rights Agent may from time to time supplement or amend the Rights
Agreement in accordance with Section 27 thereof; and
WHEREAS, the Company, Lucent Technologies Inc., a Delaware corporation
("Lucent"), and The Furukawa Electric Co., Ltd., a corporation organized
under the laws of Japan ("Furukawa"), are parties to a Financing Agreement,
dated July 24, 2001, as amended (the "Financing Agreement"), pursuant to
which the Company has agreed to issue to Lucent up to 10,200,000 shares of
the Company's common stock, par value $.01 per share (the "Common Stock"),
in lieu of a portion of the cash purchase price payable by Furukawa to
Lucent pursuant to the Asset and Stock Purchase Agreement, dated as of July
24, 2001, as amended, by and between Lucent and Furukawa; and
WHEREAS, the Board of Directors of the Company has determined that an
amendment to the Rights Agreement as set forth herein is necessary and
desirable in connection with the consummation of the transactions
contemplated by the Financing Agreement and is consistent with the
objectives of the Board of Directors of the Company in adopting the Rights
Agreement, and the Company and Rights Agent desire to evidence such
amendment in writing; and
WHEREAS, all acts and things necessary to make this Amendment valid
and enforceable have been performed and done, and the execution and
delivery of this Amendment No. 2 by the Company and the Rights Agent have
been in all respects duly authorized by the Company and the Rights Agent.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties thereto agree as follows:
1. The Rights Agreement is hereby amended as follows:
(i) Amendment of Section 1. Section 1 of the Rights Agreement is
supplemented to add the following definitions in the appropriate locations:
"Financing Agreement" shall mean the Financing Agreement,
dated July 24, 2001, among Lucent, The Furukawa Electric
Co., Ltd., and the Company, as same may be amended or
supplemented from time to time.
"Lucent" shall mean Lucent Technologies Inc., a Delaware
corporation.
(ii) Amendment of the definition of "Acquiring Person". The
second sentence of the definition of "Acquiring Person" in Section 1(a) of
the Rights Agreement is amended and restated in its entirety as follows:
Notwithstanding the foregoing, (i) the term "Acquiring
Person" shall not include (A) the Company, (B) any
Subsidiary of the Company, (C) any employee benefit plan of
the Company or of any Subsidiary of the Company, (D) any
Person or entity organized, appointed or established by the
Company for or pursuant to the terms of any such plan acting
in such capacity, or (E) Lucent, its Subsidiaries,
Affiliates or Associates, either individually or
collectively, to the extent that Lucent, its Subsidiaries,
Affiliates or Associates become the Beneficial Owner of
Common Shares solely by reason of the execution of, or
consummation of the transactions contemplated by, the
Financing Agreement; and (ii) no Person shall become an
"Acquiring Person" (x) as a result of the acquisition of
Common Shares by the Company which, by reducing the number
of Common Shares outstanding, increases the proportional
number of shares beneficially owned by such Person together
with all Affiliates and Associates of such Person, provided,
that if (1) a Person would become an Acquiring Person (but
for the operation of this clause (x)) as a result of the
acquisition of Common Shares by the Company, and (2) after
such share acquisition by the Company, such Person, or an
Affiliate or Associate of such Person, becomes the
Beneficial Owner of any additional Common Shares, then such
Person shall be deemed an Acquiring Person, or (y) if (1)
within five Business Days after such Person would otherwise
have become or, if such Person did so inadvertently, after
such Person discovers that such Person would otherwise have
become, an Acquiring Person (but for the operation of this
clause (y)), such Person notifies the Board that such Person
did so inadvertently, and (2) within two Business Days after
such notification (or such greater period of time as may be
determined by action of the Board, but in no event greater
than five Business Days), such Person divests itself of a
sufficient number of Common Shares so that such Person is
the Beneficial Owner of such number of Common Shares that
such Person no longer would be an Acquiring Person.
(iii) Amendment of the definition of "Distribution Date".
Section 3(a) of the Rights Agreement is amended by adding the following
sentence at the end thereof:
Notwithstanding anything in this Agreement to the contrary,
a Distribution Date shall not be deemed to have occurred,
and no Rights shall separate from Common Shares or otherwise
become exercisable, as the result of the execution of the
Financing Agreement, or consummation of the transactions
contemplated thereby.
(iv) Amendment of the definition of "Shares Acquisition Date".
The definition of "Shares Acquisition Date" in Section 1 of the Rights
Agreement is amended by adding the following sentence at the end thereof:
Notwithstanding anything in this Agreement to the contrary,
a Shares Acquisition Date shall not be deemed to have
occurred as the result of the execution of the Financing
Agreement, or consummation of the transactions contemplated
thereby.
(v) Amendment of Exhibit C to the Rights Agreement - Summary of
Rights to Purchase Preferred Shares. The second paragraph of Exhibit C to
the Rights Agreement (disregarding as a paragraph the capitalized legend at
the beginning thereof) is amended and restated in its entirety to read as
follows:
The Rights are attached to all certificates representing
outstanding Common Shares, and no separate Right
Certificates (as hereinafter defined) have been distributed.
The Rights will separate from the Common Shares on the
earliest to occur of (i) the first date of public
announcement that a person or "group" (other than Lucent
Technologies Inc. ("Lucent"), its Subsidiaries, Affiliates
and Associates, only to the extent that Lucent, its
Subsidiaries, Affiliates and Associates, either individually
or collectively, become the beneficial owner of Common
Shares solely by reason of the execution of, or consummation
of the transactions contemplated by, the Financing Agreement
among the Company, Lucent, and The Furukawa Electric Co.,
Ltd., dated July 24, 2001 (as such agreement may be amended
or supplemented, the "Financing Agreement")) has acquired
beneficial ownership of 15% or more of the outstanding
Common Shares (except pursuant to a Permitted Offer, as
hereinafter defined); or (ii) ten (10) business days (or
such later date as the Board of Directors of the Company may
determine) following the commencement of, or announcement of
an intention to commence, a tender offer or exchange offer
the consummation of which would result in a person or group
becoming an Acquiring Person (as hereinafter defined) (the
earliest of such dates being called the "Distribution
Date"). A person or group whose acquisition of Common Shares
causes a Distribution Date pursuant to clause (i) above is
an "Acquiring Person". The first date of public announcement
that a person or group has become an Acquiring Person is the
"Shares Acquisition Date". Notwithstanding anything in the
Rights Agreement to the contrary, neither a Distribution
Date nor a Shares Acquisition Date shall be deemed to have
occurred as the result of the execution of the Financing
Agreement, or consummation of the transactions contemplated
thereby.
(vi) All references in the Rights Agreement (including the
Exhibits thereto) shall, from and after the date hereof, refer to the
Rights Agreement as amended by Amendment No. 1 and this Amendment No. 2.
2. Effectiveness. Each party hereto represents and warrants that (i)
the execution, delivery and performance of this Amendment No. 2 by such
party have been duly authorized by all necessary corporate actions and (ii)
this Amendment No. 2 constitutes a valid and binding agreement of such
party. This Amendment No. 2 shall become effective as of the date first
above written. The Rights Agreement shall not otherwise be supplemented or
amended by virtue of this Amendment, but shall remain in full force and
effect.
3. Counterparts. This Amendment No. 2 may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed
to be an original, and all such counterparts shall together constitute but
one and the same instrument.
4. Governing Law. This Amendment No. 2 shall be deemed to be a
contract made under the laws of the State of Delaware and for all purposes
shall be governed by and construed in accordance with the laws of such
State applicable to contracts made and to be performed entirely within such
State.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No.
2 to be duly executed and attested, all as of the date and year first above
written.
COMMSCOPE, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇
Title: Senior Vice-President,
General Counsel and Secretary
MELLON INVESTOR SERVICES LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Assistant Vice President
