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EXHIBIT 10.1
QUALCOMM FINANCIAL TRUST I
5 3/4% TRUST CONVERTIBLE PREFERRED SECURITIES
(THE "CONVERTIBLE PREFERRED SECURITIES")
GUARANTEED BY AND CONVERTIBLE INTO SHARES OF
COMMON STOCK OF ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
REGISTRATION RIGHTS AGREEMENT
FEBRUARY 25, 1997
▇▇▇▇▇▇ BROTHERS INC.
BEAR, ▇▇▇▇▇▇▇ & CO., INC.
ALEX. ▇▇▇▇▇ & SONS INCORPORATED
▇▇▇▇▇▇▇, SACHS & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
As Initial Purchasers
c/▇ ▇▇▇▇▇▇ Brothers Inc.
Three World Financial Center
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
QUALCOMM Financial Trust I, a statutory business trust created
under the laws of the State of Delaware (the "Trust") by ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇,
a Delaware corporation ("QUALCOMM"), proposes to issue and sell to ▇▇▇▇▇▇
Brothers Inc., Bear, ▇▇▇▇▇▇▇ & Co., Inc., ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇, Sachs &
Co., and Alex. ▇▇▇▇▇ & Sons Incorporated (the "Initial Purchasers"), upon the
terms set forth in a purchase agreement dated February 19, 1997 (the "Purchase
Agreement"), among the Initial Purchasers, QUALCOMM and the Trust, 5 3/4% trust
convertible preferred securities (liquidation amount $50 per convertible
preferred security) (the "Convertible Preferred Securities"). As an inducement
to the Initial Purchasers to enter into the Purchase Agreement and in
satisfaction of a condition to the obligations of the Initial Purchasers
thereunder, the Trust and QUALCOMM agree with you, (i) for the benefit of the
Initial Purchasers, and (ii) for the benefit of the holders from time to time of
the Convertible Preferred Securities, the 5 3/4% Convertible Subordinated
Debentures Due February 24, 2012 (the "Debt Securities"), and the Common Stock,
par value $0.0001 per share (the "Common Stock"), of QUALCOMM initially issuable
upon conversion of the Convertible Preferred Securities or the Debt Securities
(collectively, together with the Guarantee of QUALCOMM of the Convertible
Preferred Securities, the "Securities"), including the Initial Purchasers (each
of the foregoing a "Holder" and together the "Holders"), as follows:
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1. DEFINITIONS.
Capitalized terms used herein without definition shall have
their respective meanings set forth in or pursuant to the Purchase Agreement or
the Offering Memorandum dated February 19, 1997, in respect of the Convertible
Preferred Securities. As used in this Agreement, the following capitalized
defined terms shall have the following meanings:
"Act" or
"Securities Act" means the Securities Act of 1933, as amended.
"Affiliate" of any means any other person which, directly or
specified person indirectly, is in control of, is controlled by,
or is under common control with such specified
person. For purposes of this definition,
control of a person means the power, direct or
indirect, to direct or cause the direction of
the management and policies of such person
whether by contract or otherwise; and the terms
"controlling" and "controlled" have meanings
correlative to the foregoing.
"Commission" means the Securities and Exchange Commission.
"DTC" means The Depository Trust Company.
"Effectiveness has the meaning set forth in Section 2(b)
Period hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Managing means the investment banker or investment
Underwriters bankers and manager or managers that shall
administer an underwritten offering, if any,
as set forth in Section 6 hereof.
"Person" shall mean an individual, partnership,
corporation, trust or unincorporated
organization, or a government or agency or
political subdivision thereof.
"Prospectus" means the prospectus included in any Shelf
Registration Statement (including, without
limitation, a prospectus that discloses
information previously omitted from a prospectus
filed as part of an effective registration
statement in reliance upon Rule 430A under the
Act), as amended or supplemented by any
prospectus supplement, with respect to the terms
of the offering of any portion of the
Registrable Securities.
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"Registrable Securities: means all or any portion of the
Securities issued from time to time;
provided, however, that a security
ceases to be a Registrable Security
when it is no longer a Restricted
Security.
"Restricted Security" means any Security except any such
Security which (i) has been effectively
registered under the Securities Act and
sold in a manner contemplated by the
Shelf Registration Statement, (ii) has
been transferred in compliance with
Rule 144 under the Securities Act (or
any successor provision thereto) or is
transferable pursuant to paragraph (k)
of such Rule 144 (or any successor
provision thereto), (iii) has been sold
in compliance with Regulation S under
the Securities Act (or any successor
thereto) and does not constitute the
unsold allotment of a distributor within
the meaning of Regulation S under the
Securities Act, or (iv) has otherwise
been transferred and a new Security not
subject to transfer restrictions under
the Securities Act has been delivered by
or on behalf of QUALCOMM in accordance
with the terms of the Declaration or the
Indenture, as the case may be.
"Shelf Registration means a "shelf" registration statement
Statement of the Trust and QUALCOMM pursuant to
the provisions of Section 2 hereof filed
with the Commission which covers some or
all of the Registrable Securities, as
applicable, on an appropriate form under
Rule 415 under the Act, or any similar
rule that may be adopted by the
Commission, amendments and supplements
to such registration statement,
including post-effective amendments, in
each case including the Prospectus
contained therein, all exhibits thereto
and all material incorporated by
reference therein.
"Shelf Registration" means a registration effected pursuant
to Section 2 hereof.
"Underwriter" means any underwriter of Registrable
Securities in connection with an
offering thereof under a Shelf
Registration Statement.
2. SHELF REGISTRATION.
(a) The Trust and QUALCOMM shall, within 90 days following
the date of initial issuance (the "Issue Date") of the Convertible Preferred
Securities, file with the Commission a Shelf Registration Statement relating to
the offer and sale of the Registrable Securities by the Holders from time to
time in accordance with the methods of distribution elected by such Holders and
set forth in such Shelf Registration Statement and, thereafter, shall each use
all reasonable efforts to cause such Shelf Registration Statement to be declared
effective under the Act as soon as practicable and in no event later than 180
days after the Issue Date;
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provided, however, that no Holder shall be entitled to have the Registrable
Securities held by it covered by such Shelf Registration unless such Holder is
in compliance with Section 3(m) hereof.
(b) The Trust and QUALCOMM shall each use all reasonable
efforts (i) to keep the Shelf Registration Statement continuously effective in
order to permit the Prospectus forming a part thereof to be usable by Holders
for a period of three years from the latest date of issuance of any Convertible
Preferred Securities or such shorter period that will terminate when there are
no Registrable Securities outstanding (in either case, such period being called
the "Effectiveness Period") and (ii) after the effectiveness of the Shelf
Registration Statement, promptly upon the request of any Holder to take any
action reasonably necessary to register the sale of any Registrable Securities
of such Holder and to identify such Holder as a selling securityholder. The
Trust and QUALCOMM shall be deemed not to have used all reasonable efforts to
keep the Shelf Registration Statement effective during the requisite period if
either the Trust or QUALCOMM voluntarily takes any action that would result in
Holders of Registrable Securities covered thereby not being able to offer and
sell any such Registrable Securities during that period, unless (i) such action
is required by applicable law or the rules of any national securities exchange
or other market on which any of the Registrable Securities are then listed or
quoted, (ii) upon the occurrence of any event contemplated by paragraph
3(c)(2)(iii) below, and such action is taken by the Trust or QUALCOMM in good
faith and for valid business reasons or (iii) the continued effectiveness of the
Shelf Registration Statement would require QUALCOMM to disclose a material
financing, acquisition or other corporate transaction, and the Board of
Directors shall have determined in good faith that such disclosure is not in the
best interests of QUALCOMM and its stockholders, and, in the case of clause (i)
or (ii) above, the Trust and QUALCOMM thereafter promptly comply with the
requirements of paragraph 3(i) below.
(c) If (i) on or prior to the date 90 days after the Issue
Date a Shelf Registration Statement has not been filed with the Commission or
(ii) on or prior to the date 180 days after the Issue Date such Shelf
Registration Statement has not been declared effective (each such event, a
"Registration Default"), additional interest ("Liquidated Damages") will accrue
on the Debt Securities, and, accordingly, additional distributions will accrue
on the Convertible Preferred Securities, from and including the day following
such Registration Default until such date as such Registration Degault is cured
(i.e., the date the Shelf Registration Statement is filed or declared effective,
as the case may be). Liquidated Damages will be paid quarterly in arrears, with
the first quarterly payment due on the first interest or distribution payment
date, as applicable, following the date on which such Liquidated Damages begin
to accrue, and will accrue at a rate per annum equal to an additional
one-quarter of one percent (0.25%) of the principal amount or liquidation
amount, as applicable, to and including the 90th day following such Registration
Default and one-half of one percent (0.50%) thereof from and after the 91st day
following such Registration Default. In the event that the Shelf Registration
Statement ceases to be effective during the Effectiveness Period for more than
90 days, whether or not consecutive, in any 12-month period, then the interest
rate borne by the Debt Securities and the distribution rate borne by the
Convertible Preferred Securities will each increase by an additional one-half of
one percent (0.50%) per annum from the 91st day of the applicable 12-month
period such Shelf Registration Statement ceases to be effective until such time
as the Shelf Registration Statement again becomes effective.
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3. REGISTRATION PROCEDURES.
In connection with any Shelf Registration Statement, the
following provisions shall apply:
(a) The Trust and QUALCOMM shall furnish to the Initial
Purchasers, prior to the filing thereof with the Commission, a copy of any Shelf
Registration Statement, and each amendment thereof and each amendment or
supplement, if any, to the Prospectus included therein, and shall each use all
reasonable efforts to reflect in each such document, when so filed with the
Commission, such comments as the Initial Purchasers reasonably may propose.
(b) The Trust and QUALCOMM shall take such action as may be
necessary so that (i) any Shelf Registration Statement and any amendment thereto
and any Prospectus forming a part thereof and any amendment or supplement
thereto (and each report or other document incorporated therein by reference in
each case) complies in all material respects with the applicable provisions of
the Securities Act and the Exchange Act and the respective rules and regulations
thereunder, (ii) any Shelf Registration Statement and any amendment thereto does
not, when it becomes effective, contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading and (iii) any Prospectus forming part
of any Shelf Registration Statement, and any amendment or supplement to such
Prospectus, does not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements, in the light of
the circumstances under which they were made, not misleading.
(c) (1) QUALCOMM shall advise the Initial Purchasers and, in
the case of clause (i), the Holders and, if requested by the Initial Purchasers
or any such Holder, confirm such advice in writing: (i) when a Shelf
Registration Statement and any amendment thereto has been filed with the
Commission and when the Shelf Registration Statement or any post-effective
amendment thereto has become effective; and (ii) of any request by the
Commission for amendments or supplements to the Shelf Registration Statement or
the Prospectus included therein or for additional information.
(2) QUALCOMM shall advise the Initial Purchasers and the
Holders and, if requested by the Initial Purchasers or any such Holder, confirm
such advice in writing of: (i) the issuance by the Commission of any stop order
suspending effectiveness of the Shelf Registration Statement or the initiation
of any proceedings for that purpose; (ii) the receipt by the Trust or QUALCOMM
of any notification with respect to the suspension of the qualification of the
securities included therein for sale in any jurisdiction or the initiation of
any proceeding for such purpose; and (iii) the happening of any event that
requires the making of any changes in the Shelf Registration Statement or the
Prospectus so that, as of such date, the Shelf Registration Statement and the
Prospectus do not contain an untrue statement of a material fact and do not omit
to state a material fact required to be stated therein or necessary to make the
statements therein (in the case of the Prospectus, in light of the circumstances
under which they were made) not misleading (which advice shall be accompanied by
an instruction to suspend the use of the Prospectus until the requisite changes
have been made).
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(d) QUALCOMM shall use all reasonable efforts to prevent the
issuance, and if issued to obtain the withdrawal at the earliest possible time,
of any order suspending the effectiveness of any Shelf Registration Statement.
(e) The Trust and QUALCOMM shall furnish to each Holder of
Registrable Securities included within the coverage of any Shelf Registration
Statement, without charge, at least one copy of such Shelf Registration
Statement and any post-effective amendment thereto, including financial
statements and schedules, and, if the Holder so requests in writing, all
reports, other documents and exhibits (including those incorporated by
reference).
(f) The Trust and QUALCOMM shall, during the Effectiveness
Period, deliver to each Holder of Registrable Securities included within the
coverage of any Shelf Registration Statement, without charge, as many copies of
the Prospectus (including each preliminary Prospectus) included in such Shelf
Registration Statement and any amendment or supplement thereto as such Holder
may reasonably request; and each of the Trust and QUALCOMM consents (except upon
and during the continuance of any event described in paragraph 3(c)(2)(iii)
above) to the use of the Prospectus or any amendment or supplement thereto by
each of the selling Holders of Registrable Securities in connection with the
offering and sale of the Registrable Securities covered by the Prospectus or any
amendment or supplement thereto during the Effectiveness Period.
(g) Prior to any offering of Registrable Securities pursuant
to any Shelf Registration Statement, the Trust and QUALCOMM shall register or
qualify or cooperate with the Holders of Registrable Securities included therein
and their respective counsel in connection with the registration or
qualification of such Registrable Securities for offer and sale under the
securities or blue sky laws of such jurisdictions as any such Holders reasonably
request in writing and do any and all other acts or things necessary or
advisable to enable the offer and sale in such United States jurisdictions of
the Registrable Securities covered by such Shelf Registration Statement;
provided, however, that in no event shall the Trust or QUALCOMM be obligated to
(i) qualify as a foreign corporation or as a dealer in securities in any
jurisdiction where it would not otherwise be required to so qualify but for this
Section 3(g), (ii) file any general consent to service of process in any
jurisdiction where it is not as of the date hereof so subject or (iii) subject
itself to taxation in any such jurisdiction if it is not so subject.
(h) Unless any Registrable Securities shall be in book-entry
only form, the Trust and QUALCOMM shall cooperate with the Holders of
Registrable Securities to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold pursuant to any
Shelf Registration Statement free of any restrictive legends and in such
permitted denominations and registered in such names as Holders may request in
connection with the sale of Registrable Securities pursuant to such Shelf
Registration Statement.
(i) Upon the occurrence of any event contemplated by paragraph
3(c)(2)(iii) above, the Trust and QUALCOMM shall prepare as soon as reasonably
practical a post-effective amendment to any Shelf Registration Statement or an
amendment or supplement to the related Prospectus or file any other required
document so that, as thereafter delivered to purchasers of the Registrable
Securities included therein, the Prospectus will not include an untrue statement
of
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a material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. If the Trust or QUALCOMM notifies the Holders of the
occurrence of any event contemplated by paragraph 3(c)(2)(iii) above, the
Holders shall suspend the use of the Prospectus until the requisite changes to
the Prospectus have been made.
(j) Not later than the effective date of any Shelf
Registration Statement hereunder, the Trust and QUALCOMM shall provide a CUSIP
number for the Preferred Securities registered under such Shelf Registration
Statement; in the event of and at the time of any distribution of the Debt
Securities to Holders, QUALCOMM shall provide a CUSIP number for the Debt
Securities and provide the applicable trustee with certificates for such
Registrable Securities, in a form eligible for deposit with DTC.
(k) The Trust and QUALCOMM shall use their best efforts to
comply with all applicable rules and regulations of the Commission and shall
make generally available to their security holders or otherwise provide in
accordance with Section 11(a) of the Securities Act as soon as practicable after
the effective date of the applicable Shelf Registration Statement an earnings
statement satisfying the provisions of Section 11(a) of the Securities Act.
(l) The Trust and QUALCOMM shall cause the Indenture, the
Declaration and the Guarantee to be qualified under the Trust Indenture Act in a
timely manner.
(m) The Trust and QUALCOMM may require each Holder of
Registrable Securities to be sold pursuant to any Shelf Registration Statement
to furnish to the Trust and QUALCOMM such information regarding the Holder and
the distribution of such Registrable Securities as the Trust and QUALCOMM may
from time to time reasonably request for inclusion in such Shelf Registration
Statement, and QUALCOMM and the Trust may exclude from such registration the
Registrable Securities of any Holder that fails to furnish such information
within a reasonable time after receiving such request.
(n) The Trust and QUALCOMM shall, if requested, promptly
include or incorporate in a Prospectus supplement or post-effective amendment to
a Shelf Registration Statement, such information as the Managing Underwriters
reasonably agree should be included therein and to which the Trust and QUALCOMM
do not reasonably object and shall make all required filings of such Prospectus
supplement or post-effective amendment as soon as practicable after they are
notified of the matters to be included or incorporated in such Prospectus
supplement or post-effective amendment.
(o) The Trust and QUALCOMM shall enter into such customary
agreements (including underwriting agreements in customary form) to take all
other appropriate actions in order to expedite or facilitate the registration or
the disposition of the Registrable Securities, and in connection therewith, if
an underwriting agreement is entered into, cause the same to contain
indemnification provisions and procedures substantially identical to those set
forth in Section 5 (or such other provisions and procedures reasonably
acceptable to the Managing Underwriters, if any) with respect to all parties to
be indemnified pursuant to Section 5.
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(p) The Trust and QUALCOMM shall (i) make reasonably available
for inspection by the Holders of Registrable Securities to be registered
thereunder, any Underwriter participating in any disposition pursuant to such
Shelf Registration Statement, and any attorney, accountant or other agent
retained by such Holders or any such Underwriter all relevant financial and
other records, pertinent corporate documents and properties of the Trust and
QUALCOMM and its subsidiaries; (ii) cause QUALCOMM's officers, directors and
employees and the Regular Trustees to make reasonably available for inspection
all relevant information reasonably requested by such Holders or any such
Underwriter, attorney, accountant or agent in connection with any such Shelf
Registration Statement, in each case as is customary for similar due diligence
examinations; provided, however, that any information that is designated in
writing by the Trust and QUALCOMM, in good faith, as confidential at the time of
delivery of such information shall not be used for any purpose other than the
preparation and filing of the Shelf Registration Statement and shall be kept
confidential by such Holders or any such Underwriter, attorney, accountant or
agent, unless such disclosure is made in connection with a court proceeding or
required by law, or such information becomes available to the public generally
or through a third party without an accompanying obligation of confidentiality;
and provided further that the foregoing inspection and information gathering
shall, to the greatest extent possible, be coordinated on behalf of the Holders
and the other parties entitled thereto by one counsel designated by and on
behalf of such Holders and other parties; (iii) make such representations and
warranties to the Holders of Registrable Securities registered thereunder and
the Underwriters, if any, in form, substance and scope as are customarily made
to Underwriters in primary underwritten offerings and covering matters
including, but not limited to, those set forth in the Purchase Agreement; (iv)
obtain opinions of counsel to the Trust and QUALCOMM (who may be the general
counsel of QUALCOMM) and updates thereof (which counsel and opinions (in form,
scope and substance) shall be reasonably satisfactory to the Managing
Underwriters, if any) in customary form addressed to each selling Holder and the
Underwriters, if any, covering such matters as are customarily covered in
opinions requested in underwritten offerings and such other matters as may be
reasonably requested by such Holders and the Managing Underwriters (it being
agreed that the matters to be covered by such opinion or a written statement by
such counsel delivered in connection with such opinions shall include, without
limitation, as of the date of the opinion and as of the effective date of the
Shelf Registration Statement or most recent post-effective amendment thereto, as
the case may be, that nothing has come to the attention of such counsel that
causes such counsel to believe that such Shelf Registration Statement or the
prospectus included therein, as then amended or supplemented, including the
documents incorporated by reference therein, included an untrue statement of a
material fact or omitted to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading); (v) obtain
"cold comfort" letters and updates thereof from the independent public
accountants of QUALCOMM (and, if necessary, any other independent public
accountants of any subsidiary of QUALCOMM or of any business acquired by
QUALCOMM for which financial statements and financial data are, or are required
to be, included in the Shelf Registration Statement), addressed to each such
Holder of Registrable Securities registered thereunder and the Underwriters, if
any, in customary form and covering matters of the type customarily covered in
"cold comfort" letters in connection with primary underwritten offerings; and
(vi) deliver such other customary documents and certificates as may be
reasonably requested by any such Holders and the Managing Underwriters, if any,
including
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those to evidence compliance with Section 3(i) and with any customary conditions
contained in the underwriting agreement or other agreement entered into by the
Trust and QUALCOMM. The foregoing actions set forth in clauses (iii), (iv), (v)
and (vi) of this Section 3(p) shall be performed at each closing under any
underwritten offering to the extent required thereunder.
(q) In the event that any broker-dealer registered under the
Exchange Act shall underwrite any Registrable Securities or participate as a
member of an underwriting syndicate or selling group or "assist in the
distribution" (within the meaning of the Rules of Fair Practice and the By-Laws
of the National Association of Securities Dealers, Inc. ("NASD")) thereof,
whether as a Holder of such Registrable Securities or as an underwriter, a
placement or sales agent or a broker or dealer in respect thereof, or otherwise,
QUALCOMM shall assist such broker-dealer in complying with the requirements of
such Rules and By-Laws, including, without limitation, by (A) if such Rules or
By-Laws, including Schedule E thereto, shall so require, engaging at the expense
of the Holders a "qualified independent underwriter" (as defined in Schedule E)
to participate in the preparation of the Shelf Registration Statement relating
to such Registrable Securities and to exercise usual standards of due diligence
with respect thereto, (B) indemnifying any such qualified independent
underwriter to the extent of the indemnification of Underwriters provided in
Section 5 hereof and (C) providing such information to such broker-dealer as may
be reasonably required in order for such broker-dealer to comply with the
requirements of the Rules of Fair Practice of the NASD.
(r) The Trust and QUALCOMM shall use all reasonable efforts to
take all other steps necessary to effect the registration, offering and sale of
the Registrable Securities covered by the Shelf Registration Statement
contemplated hereby.
4. REGISTRATION EXPENSES.
Except as otherwise provided in Section 6, QUALCOMM shall bear
all fees and expenses incurred by it and the Trust in connection with the
performance of its obligations under Sections 2 and 3 hereof and shall bear or
reimburse the Holders for the reasonable fees and disbursements of one firm of
counsel designated by the Initial Purchasers and reasonably acceptable to
QUALCOMM and the Holders of a majority of the Registrable Securities covered by
the Shelf Registration Statement to act as counsel therefor in connection
therewith, including any underwritten offering pursuant to Section 6.
5. INDEMNIFICATION AND CONTRIBUTION.
(a) In connection with any Shelf Registration Statement,
QUALCOMM shall indemnify and hold harmless the Trust, the Initial Purchasers,
each Holder, each Underwriter who participates in an offering of Registrable
Securities, each of their respective directors, officers, employees, and
trustees, and each Person, if any, who controls the Trust, the Initial
Purchasers and any Underwriter within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act as follows:
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(i) from and against any loss, liability, claim, damage
and expense whatsoever, including any amounts paid in settlement of any
investigation, litigation, proceeding or claim, joint or several, as incurred,
arising out of any untrue statement or alleged untrue statement of a material
fact contained in any Shelf Registration Statement (or any amendment thereto)
covering Registrable Securities, including all documents incorporated therein by
reference, or the omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the statements therein not
misleading, or arising out of any untrue statement or alleged untrue statement
of a material fact contained in any Prospectus (or any amendment or supplement
thereto) or 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; provided, that
QUALCOMM shall not be liable under this clause (i) for any settlement of any
action effected without its written consent, which consent shall not be
unreasonably withheld; and (ii) against any and all expenses (including
reasonable fees and disbursements of counsel chosen by the Holders, such Holder
or any Underwriter (except to the extent otherwise expressly provided in Section
5(c) hereof)), reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any court or
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, as such expenses are incurred to the extent that any such
expense is not paid under subparagraph (i) of this Section 5(a); provided
further, that the indemnity provided for in this Section 5(a) shall not apply to
any loss, liability, claim, damage or expense to the extent arising out of an
untrue statement or omission or alleged untrue statement or omission (i) made in
reliance upon and in conformity with written information furnished to the Trust
or QUALCOMM by the Initial Purchasers, such Holder or any Underwriter in writing
expressly for use in the Shelf Registration Statement (or any amendment thereto)
or any Prospectus (or any amendment or supplement thereto) or (ii) contained in
any preliminary prospectus or the Prospectus if the Initial Purchasers, such
Holder or such Underwriter failed to send or deliver a copy of the Prospectus
(or any amendment or supplement thereto) to the Person asserting such losses,
claims, damages or liabilities on or prior to the delivery of written
confirmation of any sale of securities covered thereby to such Person in any
case where such Prospectus (or any amendment or supplement thereto) corrected
such untrue statement or omission. Any amounts advanced by QUALCOMM to an
indemnified party pursuant to this Section 5 as a result of such losses shall be
returned to QUALCOMM if it shall be finally determined by such a court in a
judgment not subject to appeal or final review that such indemnified party was
not entitled to indemnification by QUALCOMM.
(b) Each Holder, severally and not jointly, shall indemnify
and hold harmless the Trust, QUALCOMM, the Initial Purchasers, each Underwriter
who participates in an offering of Registrable Securities and the other selling
Holders and each of their respective directors, officers (including each officer
of QUALCOMM who signed the Shelf Registration Statement), employees and trustees
and each Person, if any, who controls the Trust, QUALCOMM, the Initial
Purchasers, any Underwriter or any other selling Holder within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, from and
against any loss, liability, claim, damage and expense whatsoever described in
the indemnity contained in Section 5(a) hereof, as incurred, but only with
respect to untrue statements or omissions, or alleged untrue
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statements or omissions, made in the Shelf Registration Statement (or any
amendment thereto) or any Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to QUALCOMM
by such selling Holder expressly for use in the Shelf Registration Statement (or
any amendment thereto) or any Prospectus (or any amendment or supplement
thereto); provided, however, that no such Holder shall be liable for any claims
hereunder in excess of the amount of gross proceeds received by such Holder from
the sale of Registrable Securities pursuant to the Shelf Registration Statement.
(c) Each indemnified party shall give prompt notice to each
indemnifying party of any claim or any action commenced against it in respect of
which indemnity may be sought hereunder, enclosing a copy of all papers served
on such indemnified party, but failure to so notify an indemnifying party shall
not relieve such indemnifying party from any liability which it may have other
than on account of this indemnity agreement. An indemnifying party may
participate at its own expense in the defense of any such action. If an
indemnifying party so elects within a reasonable time after receipt of such
notice, such indemnifying party, jointly with any other indemnifying party, may
assume the defense of such action with counsel chosen by it and reasonably
satisfactory to the indemnified party or parties defendant in such action,
provided that if any such indemnified party reasonably determines that
representation of such indemnifying party and any indemnified party by the same
counsel would present a conflict of interest, then such indemnifying party or
parties shall not be entitled to assume such defense. If an indemnifying party
is not entitled to assume the defense of such action as a result of the proviso
to the preceding sentence, counsel for such indemnifying party shall be entitled
to conduct the defense of such indemnifying party and counsel for each
indemnified party or parties shall be entitled to conduct the defense of such
indemnified party or parties. If an indemnifying party assumes the defense of an
action in accordance with and as permitted by the provisions of this paragraph,
such indemnifying party shall not be liable for any fees and expenses of counsel
for the indemnified parties incurred thereafter in connection with such action.
In no event shall the indemnifying party or parties be liable for the fees and
expenses of more than one counsel (in addition to any local counsel) separate
from its 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 (i) without the prior written consent of the indemnified parties
(which consent shall not be unreasonably withheld), settle or compromise or
consent to the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified parties are
actual or potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each indemnified
party from all liability arising out of such claim, action, suit or proceeding,
or (ii) be liable for any settlement of any such action effected without its
written consent (which consent shall not be unreasonably withheld), but if
settled with the consent of the indemnifying party or if there shall be a final
judgment for the plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and against any loss or
liability by reason of such settlement or judgment.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in Section 5(a) or
(b) is for any reason held to be unavailable to the indemnified parties although
applicable in accordance with its terms,
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QUALCOMM, the Initial Purchasers and the Holders shall contribute to the
aggregate losses, liabilities, claims, damages and expenses of the nature
contemplated by said indemnity agreement incurred by QUALCOMM, the Initial
Purchasers and the Holders, as incurred; provided that no Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person that was not
guilty of such fraudulent misrepresentation. As between QUALCOMM, the Initial
Purchasers and the Holders, such parties shall contribute to such aggregate
losses, liabilities, claims, damages and expenses of the nature contemplated by
such indemnity agreement in such proportion as shall be appropriate to reflect
the relative fault of QUALCOMM, on the one hand, and the Initial Purchasers and
the Holders, on the other hand, with respect to the statements or omissions
which resulted in such loss, liability, claim, damage or expense, or action in
respect thereof, as well as any other relevant equitable considerations. The
relative fault of QUALCOMM, on the one hand, and of the Initial Purchasers and
the Holders, on the other hand, shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by QUALCOMM, on the one hand, or by or on behalf of the Initial
Purchasers or the Holders, on the other, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. QUALCOMM, the Initial Purchasers and the Holders of the
Registrable Securities agree that it would not be just and equitable if
contribution pursuant to this Section 5(d) were to be determined by pro rata
allocation or by any other method of allocation that does not take into account
the relevant equitable considerations. For purposes of this Section 5(d), each
director, officer, employee and trustee of an Initial Purchaser or Holder, and
each Person, if any, who controls an Initial Purchaser or Holder within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act,
shall have the same rights to contribution as such Initial Purchaser or Holder,
and each director, officer, employee and trustee of QUALCOMM and the Trust, and
each Person, if any, who controls QUALCOMM or the Trust within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, shall have
the same rights to contribution as QUALCOMM or the Trust. No party shall be
liable for contribution with respect to any action, suit, proceeding or claim
settled without its written consent.
6. UNDERWRITTEN OFFERING.
The Holders of Registrable Securities covered by the Shelf
Registration Statement who desire to do so may sell such Registrable Securities
in an underwritten offering. In any such underwritten offering, the investment
banker or bankers and manager or managers that will administer the offering will
be selected by, and the underwriting arrangements with respect thereto will be
approved by, the Holders of a majority of the Registrable Securities to be
included in such offering; provided however, that (i) such investment bankers
and managers and underwriting arrangements (including indemnification
agreements) must be reasonably satisfactory to QUALCOMM and the Trust and (ii)
QUALCOMM and the Trust shall not be obligated to cooperate with the Initial
Purchasers or Holders in more than one underwritten offering during the
Effectiveness Period. No Holder may participate in the underwritten offering
contemplated hereby unless such Holder (a) agrees to sell such Holder's
Registrable Securities in accordance with any approved underwriting
arrangements, (b) completes and executes all
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reasonable questionnaires, powers of attorney, indemnities, underwriting
agreements, lock-up letters and other documents required under the terms of such
approved underwriting arrangements and (c) at least 20% of the outstanding
Registrable Securities are included in such underwritten offering. The Holders
participating in the underwritten offering shall be responsible for any
underwriting discounts and commissions. The Trust and QUALCOMM shall pay all
expenses customarily borne by issuers, including but not limited to filing fees,
the fees and disbursements of their counsel, their independent public
accountants and any printing and other out-of-pocket expenses incurred by them
in connection with such underwritten offering, and in accordance with Section 4
hereof the reasonable fees and disbursements of counsel to the selling
securityholders. Notwithstanding the foregoing or the provisions of Section 3(n)
hereof, upon receipt of a request from the Managing Underwriter or a
representative of Holders of a majority of the Registrable Securities
outstanding to prepare and file an amendment or supplement to the Shelf
Registration Statement and Prospectus in connection with an underwritten
offering, QUALCOMM may delay the filing of any such amendment or supplement for
up to 90 days if QUALCOMM in good faith has a valid business reason for such
delay.
7. MISCELLANEOUS.
(a) Other Registration Rights.
QUALCOMM may grant registration rights that would permit any
Person that is a third party the right to piggy-back on any Shelf Registration
Statement, provided that if the Managing Underwriter, if any, of such offering
delivers an opinion to the selling Holders that the total amount of securities
which they and the holders of such piggy-back rights intend to include in any
Shelf Registration Statement is so large as to materially adversely affect the
success of such offering (including the price at which such securities can be
sold), then (except to the extent otherwise required under the terms of any
registration rights granted by QUALCOMM prior to the date hereof) only the
amount, number or kind of securities to be offered for the account of holders of
such piggy-back rights will be reduced to the extent necessary to reduce the
total amount of securities to be included in such offering to the amount, number
or kind recommended by the Managing Underwriter prior to any reduction in the
amount of Registrable Securities to be included.
(b) Amendments and Waivers.
The provision of this Agreement, including the provisions of
this sentence, may not be amended, qualified, modified or supplemented, and
waivers or consents to departures from the provisions hereof may not be given,
unless the Trust and QUALCOMM have obtained the written consent of the Initial
Purchasers. Any such written consent of the Initial Purchasers shall be binding
upon each Holder and each subsequent Holder.
(c) Notices.
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All notices and other communications provided for or permitted
hereunder shall be made in writing by hand-delivery, first-class mail, telex,
telecopier, or air courier guaranteeing overnight delivery:
(1) if to a Holder, at the most current address given by
such Holder to QUALCOMM in accordance with the provisions of this Section 7(c);
(2) if to the Initial Purchasers, initially at the
address set forth in the Purchase Agreement; and
(3) if to the Trust or QUALCOMM, initially at its address
set forth in the Purchase Agreement.
All such notices and communications shall be deemed to have
been duly given when received.
The Initial Purchasers or the Trust and QUALCOMM by notice to
the other may designate additional or different addresses for subsequent notices
or communications.
(d) Successors and Assigns.
This Agreement shall inure to the benefit of and be binding
upon the successors and assigns of each of the parties and the Holders,
including, without the need for an express assignment or any consent by the
Trust or QUALCOMM thereto, subsequent Holders of Registrable Securities. The
Trust and QUALCOMM hereby agree to extend the benefits of this Agreement to any
Holder of Registrable Securities and any such Holder may specifically enforce
the provisions of this Agreement as if an original party hereto.
(e) Counterparts.
This Agreement may be executed in any number of counterparts
and by the parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
(f) Headings.
The headings herein are inserted for convenience of reference
only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
(g) Governing law.
This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard to the
conflicts of laws principles thereof.
(h) Severability.
In the event that any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid, illegal
or unenforceable in any respect
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for any reason, the validity, legality and enforceability of any such provision
in every other respect and of the remaining provisions hereof shall not be in
any way impaired or affected thereby, it being intended that all of the rights
and privileges of the parties shall be enforceable to the fullest extent
permitted by law.
Please confirm that the foregoing correctly sets forth the
agreement between QUALCOMM, the Trust and you.
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Very truly yours,
QUALCOMM FINANCIAL TRUST I
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Regular Trustee
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President and Chief
Financial Officer
Accepted:
▇▇▇▇▇▇ BROTHERS INC.
BEAR, ▇▇▇▇▇▇▇ & CO., INC.
ALEX. ▇▇▇▇▇ & SONS INCORPORATED
▇▇▇▇▇▇▇, SACHS & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
By: ▇▇▇▇▇▇ BROTHERS INC.
By: [illegible]
----------------------------------------
Authorized Representative
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