EXHIBIT 10.2
REGISTRATION RIGHTS AGREEMENT
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This Registration Rights Agreement is made and entered into as of June
30, 1998, by and between Comverse Technology, Inc., a New York corporation (the
"Company"), and Xxxxxx Brothers Inc. (the "Initial Purchaser") who has purchased
or has the right to purchase up to $250,000,000 (up to $300,000,000 if the over-
allotment option is exercised) in aggregate principal amount of 4-1/2%
Convertible Subordinated Debentures due 2005 (the "Debentures") of the Company
pursuant to the Purchase Agreement (as such term is defined below).
This Agreement is made pursuant to the Purchase Agreement, dated June
25, 1998, between the Company and the Initial Purchaser (the "Purchase
Agreement"). In order to induce the Initial Purchaser to enter into the
Purchase Agreement, the Company has agreed to provide the registration rights
provided for in this Agreement to the Initial Purchaser and its respective
direct and indirect transferees (i) for the benefit of the Initial Purchaser,
(ii) for the benefit of the holders from time to time of the Debentures
(including the Initial Purchaser) and the holders from time to time of the
Common Stock issuable or issued upon conversion of the Debentures and (iii) for
the benefit of the securities constituting the Transfer Restricted Securities
(as defined below). The execution of this Agreement is a condition to the
closing of the transactions contemplated by the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions. As used in this Agreement, the following terms
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shall have the following meanings:
Advice: As defined in Section 2(d) hereof.
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Affiliate: An affiliate of any specified person shall mean any other
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person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified person. For the purposes of this
definition, "control," when used with respect to any person, means the power to
direct the management and policies of such person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise and
the terms "affiliated," "controlling" and "controlled" have meanings correlative
to the foregoing.
Agreement: This Registration Rights Agreement, as the same may be
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amended, supplemented or modified from time
to time in accordance with the terms hereof.
Business Day: Each Monday, Tuesday, Wednesday, Thursday and Friday
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that is not a day on which banking institutions in New York, New York are
authorized or obligated by law or executive order to close.
Closing Date: June 30, 1998.
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Common Stock: common stock, $.10 par value per share, of the Company
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and any other shares of common stock as may constitute "Common Stock" for
purposes of the Indenture, in each case, as issuable or issued upon conversion
of the Debentures.
Company: Comverse Technology, Inc., a New York corporation, and any
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successor corporation thereto.
controlling person: As defined in Section 6(a) hereof.
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Debentures: The $250,000,000 aggregate principal amount of 4-1/2%
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Convertible Subordinated Debentures due 2005 of the Company being issued
pursuant to the Indenture (together with the up to $50,000,000 aggregate
principal amount of such Debentures if, and to the extent, the Initial
Purchaser's over-allotment option is exercised).
Effectiveness Period: As defined in Section 2(a) hereof.
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Effectiveness Target Date: The 180th day following the Closing Date.
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Exchange Act: The Securities Exchange Act of 1934, as amended, and
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the rules and regulations promulgated by the SEC pursuant thereto.
Filing Date: The 90th day after the Closing Date.
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Holder: Each owner of any Transfer Restricted Securities.
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Indemnified Person: As defined in Section 6(a) hereof.
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Indenture: The Indenture, dated as of the date hereof, between the
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Company and the Trustee thereunder, pursuant to which the Debentures are being
issued, as
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amended, modified or supplemented from time to time in accordance with the terms
thereof.
Initial Purchaser: As defined in the first paragraph hereof.
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Liquidated Damages: As defined in Section 3 hereof.
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Proceeding: An action, claim, suit or proceeding (including, without
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limitation, an investigation or partial proceeding, such as disposition),
whether commenced or threatened.
Prospectus: The prospectus included in any Registration Statement
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(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 promulgated pursuant to the Securities
Act), as amended or supplemented by any prospectus supplement, with respect to
the resale of any of the Transfer Restricted Securities covered by such
Registration Statement, and all other amendments and supplements to any such
prospectus, including post-effective amendments, and all materials incorporated
by reference or deemed to be incorporated by reference, if any, in such
prospectus.
Purchase Agreement: As defined in the second paragraph hereof.
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Registration Statement: Any registration statement of the Company
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filed with the SEC pursuant to the Securities Act that covers the resale of any
of the Transfer Restricted Securities pursuant to the provisions of this
Agreement, including the Prospectus, amendments and supplements to such
registration statement or Prospectus, including pre- and post-effective
amendments, all exhibits thereto, and all material incorporated by reference or
deemed to be incorporated by reference, if any, in such registration statement.
Rule 144: Rule 144 promulgated by the SEC pursuant to the Securities
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Act, as such Rule may be amended from time to time, or any successor rule or
regulation.
Rule 144A: Rule 144A promulgated by the SEC pursuant to the
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Securities Act, as such Rule may be amended from time to time, or any successor
rule or regulation.
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Rule 158: Rule 158 promulgated by the SEC pursuant to the Securities
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Act, as such Rule may be amended from time to time, or any successor rule or
regulation.
Rule 174: Rule 174 promulgated by the SEC pursuant to the Securities
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Act, as such Rule may be amended from time to time, or any successor rule or
regulation.
Rule 415: Rule 415 promulgated by the SEC pursuant to the Securities
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Act, as such Rule may be amended from time to time, or any successor rule or
regulation.
Rule 424: Rule 424 promulgated by the SEC pursuant to the Securities
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Act, as such Rule may be amended from time to time, or any successor rule or
regulation.
Sale Notice: As defined in Section 2(d) hereof.
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SEC: The Securities and Exchange Commission.
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Securities Act: The Securities Act of 1933, as amended, and the rules
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and regulations promulgated by the SEC thereunder.
Shelf Registration Statement: As defined in Section 2(a) hereof.
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Special Counsel: Any special counsel to the holders of Transfer
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Restricted Securities.
TIA: The Trust Indenture Act of 1939, as amended.
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Transfer Restricted Securities: The Debentures and the shares of
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Common Stock into which the Debentures are converted or convertible (including
any shares of Common Stock issued or issuable thereon upon any stock split,
stock combination, stock dividend or the like), upon original issuance thereof,
and at all times subsequent thereto, and associated related rights, if any,
until, in the case of any such Debenture or share (and associated rights) (i)
the date on which the resale thereof has been registered effectively pursuant to
the Securities Act and have been disposed of in accordance with the Registration
Statement relating thereto, (ii) the date on which either such Debenture or the
shares of Common Stock issued upon conversion of such Debenture are distributed
to the public pursuant to Rule 144 (or any similar provisions then in effect) or
are saleable pursuant to Rule 144(k) promulgated by the SEC pursuant to the
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Securities Act or (iii) the date on which it ceases to be outstanding, whichever
date is earliest.
Trustee: The Trustee under the Indenture.
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Underwritten registration or underwritten offering: A registration in
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connection with which securities of the Company are sold to an underwriter for
reoffering to the public pursuant to an effective Registration Statement.
References herein to the term "Holders of a majority in aggregate
principal amount of Transfer Restricted Securities" or words to a similar effect
shall mean, with respect to any request, notice, demand, objection or other
action by the holders of Transfer Restricted Securities hereunder or pursuant
hereto (each, an "Act"), registered holders of a number of shares of then
outstanding Common Stock constituting Transfer Restricted Securities and an
aggregate principal amount of then outstanding Debentures constituting Transfer
Restricted Securities, such that the sum of such shares of Common Stock and the
shares of Common Stock issuable upon conversion of such Debentures constitute in
excess of 50% of the sum of all of the then outstanding shares of Common Stock
constituting Transfer Restricted Securities and the number of shares of Common
Stock issuable upon conversion of then outstanding Debentures constituting
Transfer Restricted Securities. For purposes of the immediately preceding
sentence, (i) any Holder may elect to take any Act with respect to all or any
portion of Transfer Restricted Securities held by it and only the portion as to
which such Act is taken shall be included in the numerator of the fraction
described in the preceding sentence and (ii) Transfer Restricted Securities
owned, directly or indirectly, by the Company or its Affiliates shall be deemed
not to be outstanding.
2. Shelf Registration Statement. (a) The Company agrees to file
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with the SEC as soon as practicable after the Closing Date, but in no event
later than the Filing Date, a Registration Statement for an offering to be made
on a continuous basis pursuant to Rule 415 covering all of the Transfer
Restricted Securities (the "Shelf Registration Statement"). The Shelf
Registration Statement shall be on Form S-3 under the Securities Act or another
appropriate form selected by the Company permitting registration of such
Transfer Restricted Securities for resale by the Holders in the manner or
manners reasonably designated by them (including, without limitation, one or
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more underwritten offerings). The Company shall not permit any securities other
than the Transfer Restricted Securities to be included in the Shelf Registration
Statement. The Company shall use all reasonable efforts to cause the Shelf
Registration Statement to be declared effective pursuant to the Securities Act
as promptly as practicable following the filing thereof, but in no event later
than the Effectiveness Target Date, and to keep the Shelf Registration Statement
continuously effective under the Securities Act until the date that is 24 months
after the date on which all of the Debentures are sold (including those sold
pursuant to the over-allotment option granted to the Initial Purchaser in the
Purchase Agreement) to the Initial Purchaser (the "Effectiveness Period"), or
such shorter period ending when there cease to be outstanding any Transfer
Restricted Securities.
(b) Supplements and Amendments. Subject to Section 2(d) hereof, the
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Company shall use its reasonable efforts to keep the Shelf Registration
Statement continuously effective by supplementing and amending the Shelf
Registration Statement if required by the rules, regulations or instructions
applicable to the registration form used for such Shelf Registration Statement,
if required by the Securities Act, or if reasonably requested by the Holders of
a majority in aggregate principal amount, in the case of the Debentures, or the
number, in the case of the Common Stock, of the Transfer Restricted Securities
or by any underwriter of such Transfer Restricted Securities.
(c) Selling Securityholder Information. The Company may require each
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Holder of Transfer Restricted Securities to be sold pursuant to the Shelf
Registration Statement to furnish to the Company such information regarding the
Holder and the distribution of the Transfer Restricted Securities as the Company
may from time to time reasonably require for inclusion in the Shelf Registration
Statement, and the Company may exclude from such registration the Transfer
Restricted Securities of any Holder that fails to furnish such information
within a reasonable time after receiving such request. Each Holder of Transfer
Restricted Securities to be sold pursuant to a Shelf Registration Statement
agrees to furnish to the Company all information required to be disclosed in
order to make the information previously furnished to the Company by such Holder
not misleading.
(d) Certain Notices; Suspension of Sales. Each Holder of Transfer
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Restricted Securities agrees by its
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acquisition of such Transfer Restricted Securities to notify the Company (a
"Sale Notice") not later than three (3) Business Days prior to any proposed sale
by such Holder of Transfer Restricted Securities pursuant to the Shelf
Registration Statement, which notice shall be effective for five (5) Business
Days. The Company may, upon written notice to such Holder, suspend such Holder's
use of the Prospectus (which is a part of the Shelf Registration Statement) for
a reasonable period not to exceed sixty (60) days if the Company in its
reasonable judgment believes it may possess material non-public information the
disclosure of which in its reasonable judgment would have a material adverse
effect on the Company and its subsidiaries taken as a whole. Each Holder of
Transfer Restricted Securities agrees by its acquisition of such Transfer
Restricted Securities to hold any communication by the Company in response to a
Sale Notice in confidence. Each Holder of Transfer Restricted Securities further
agrees by its acquisition of such Transfer Restricted Securities that, upon
receipt of any notice from the Company of the happening of any event of the kind
described in Section 4(c)(ii), 4(c)(iii), 4(c)(v) or 4(c)(vi) hereof, such
Holder will forthwith discontinue disposition of such Transfer Restricted
Securities covered by such Registration Statement or Prospectus (other than in
lawful transactions exempt from the registration requirements under the
Securities Act) until such Holder's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 4(j) hereof, or until it is advised
in writing (the "Advice") by the Company that the use of the applicable
Prospectus may be resumed, and, in either case, has received copies of any
additional or supplemental filings that are incorporated or deemed to be
incorporated by reference in such Prospectus.
(e) Compliance. The Company shall cause the Shelf Registration
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Statement and the Prospectus and any amendment or supplement thereto, as of the
effective date of the Shelf Registration Statement, amendment or supplement, (i)
to comply as to form in all material respects with the applicable requirements
of the Securities Act and the rules and regulations of the SEC and (ii) not to
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
3. Liquidated Damages. If (a) the Shelf Registration Statement is
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not filed with the SEC on or prior
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to the Filing Date or (b) the Shelf Registration Statement has not been declared
effective by the SEC on or prior to the Effectiveness Target Date (each such
event referred to in clauses (a) and (b), a "Registration Default"), then the
Company will pay to each Holder, for the first 90-day period immediately
following the occurrence of such Registration Default, liquidated damages
("Liquidated Damages") in an amount equal to one-quarter of one percent (0.25%)
per annum times the principal amount of the Transfer Restricted Securities held
by such Holder for so long as the Registration Default continues. The amount of
Liquidated Damages payable to each Holder shall increase by an additional one-
quarter of one percent (0.25%) per annum times the principal amount of Transfer
Restricted Securities held by such Holder from and after the 91st day following
such Registration Default; provided, however, that (1) upon filing of the Shelf
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Registration Statement, in the case of (i) above, or (2) upon the effectiveness
of the Shelf Registration Statement, in the case of (ii) above, the Liquidated
Damages payable with respect to such Transfer Restricted Securities as a result
of such clause (i) or (ii), as applicable, shall cease; and, provided, further,
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that the amount of Liquidated Damages shall never exceed one-half of one percent
(0.5%) per annum.
Liquidated Damages shall be paid semi-annually in arrears, with the first
semi-annual payment due on the first interest payment date, as applicable,
following the date on which such Liquidated Damages begin to accrue, and shall
be paid to holders of record of such Transfer Restricted Securities on such
interest payment date in the same manner as interest is paid under the
Indenture. The payment of any such Liquidated Damages shall in all respects be
subject to the terms and conditions set forth in the Indenture, including,
without limitation, the subordination provisions thereof. All obligations of
the Company set forth in the preceding paragraph that are outstanding with
respect to any Transfer Restricted Security at the time such security ceases to
be a Transfer Restricted Security shall survive until such time as all such
obligations with respect to such security shall have been satisfied in full.
4. Registration Procedures. In connection with the Company's
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registration obligations hereunder, the Company shall effect such registrations
on the appropriate form selected by the Company available for the sale of the
Transfer Restricted Securities to permit the sale of Transfer Restricted
Securities in accordance with the intended method or methods of disposition
thereof, and
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pursuant thereto the Company shall as expeditiously as possible:
(a) No fewer than five Business Days prior to the initial filing of a
Registration Statement or Prospectus and no fewer than two Business Days prior
to the filing of any amendment or supplement thereto (including any document
that would be incorporated or deemed to be incorporated therein by reference),
furnish to the registered (as of the most recent reasonably practicable date
which shall not be more than two Business Days prior to the date such notice is
personally delivered, delivered to a next-day courier, deposited in the mail or
telecopied, as the case may be) Holders of the Transfer Restricted Securities,
Special Counsel and the managing underwriters, if any, copies of all such
documents proposed to be filed, which documents (including those incorporated or
deemed to be incorporated by reference) will be subject to the review of such
Holders, Special Counsel and such underwriters, if any, and cause the officers
and directors of the Company, counsel to the Company and independent certified
public accountants to the Company to respond to such inquiries as shall be
necessary in connection with such Registration Statement, in the opinion of
respective counsel to such Holders and such underwriters, to conduct a
reasonable investigation within the meaning of the Securities Act. The Company
shall not file any such Registration Statement or related Prospectus or any
amendments or supplements thereto to which the Holders of a majority in
aggregate principal amount, in the case of the Debentures, or the number, in the
case of the Common Stock, of the Transfer Restricted Securities, Special
Counsel, or the managing underwriters, if any, shall reasonably object on a
timely basis;
(b) Subject to Section 2(d) hereof, prepare and file with the SEC such
amendments, including post-effective amendments, to each Registration Statement
as may be necessary to keep such Registration Statement continuously effective
for the applicable time period set forth in Section 2(a) hereof; and cause the
related Prospectus to be supplemented by any required Prospectus supplement, and
as so supplemented to be filed pursuant to Rule 424 (or any similar provisions
then in force) under the Securities Act and the Exchange Act with respect to the
disposition of all securities covered by such Registration Statement during such
period in accordance with the intended methods of disposition by the sellers
thereof set forth in such Registration Statement as so amended or in such
Prospectus as so supplemented;
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(c) Notify the registered (as of the most recent reasonably
practicable date which shall not be more than two Business Days prior to the
date such notice is personally delivered, delivered to a next-day courier,
deposited in the mail or telecopied, as the case may be) Holders of Transfer
Restricted Securities to be sold or Special Counsel and the managing
underwriters, if any, promptly (and in the case of an event specified by clause
(i)(A) of this paragraph in no event fewer than two Business Days prior to such
filing), and (if requested by any such person), confirm such notice in writing,
(i)(A) when a Prospectus or any Prospectus supplement or post-effective
amendment is proposed to be filed, and, (B) with respect to a Registration
Statement or any post-effective amendment, when the same has become effective,
(ii) of any request of the SEC or any other Federal or state governmental
authority for amendments or supplements to a Registration Statement or related
Prospectus or for additional information related thereto, (iii) of the issuance
by the SEC, any state securities commission, any other governmental agency or
any court of any stop order, order or injunction suspending or enjoining the use
or the effectiveness of a Registration Statement or the initiation of any
proceedings for that purpose, (iv) if at any time any of the representations and
warranties of the Company contained in any agreement (including any underwriting
agreement) contemplated by Section 4(l) hereof are not true and correct in all
material respects, (v) of the receipt by the Company of any notification with
respect to the suspension of the qualification or exemption from qualification
of any of the Transfer Restricted Securities for sale in any jurisdiction, or
the initiation or threatening of any proceeding for such purpose, and (vi) of
the existence of any fact and the happening of any event that makes any
statement made in such Registration Statement or related Prospectus untrue in
any material respect, or that requires the making of any changes in such
Registration Statement or Prospectus so that in the case of the Registration
Statement, it will not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make
the statements therein not misleading and that, in the case of the Prospectus,
such Prospectus will not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, except if the existence of such fact or the happening of
any such event results from a corporate development that is being pursued
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by the Company (A) the disclosure of which in the Company's reasonable judgment
would have a material adverse effect on the Company and its subsidiaries taken
as a whole and (B) which, in the Company's reasonable judgment after
consultation with counsel would not, in the absence of an effective Registration
Statement, be required to be disclosed by the Company;
(d) Use all reasonable efforts to avoid the issuance of, or, if
issued, obtain the withdrawal of any order enjoining or suspending the use or
effectiveness of a Registration Statement or the lifting of any suspension of
the qualification (or exemption from qualification) of any of the Transfer
Restricted Securities for sale in any jurisdiction, at the earliest practicable
moment;
(e) Subject to Section 2(c) hereof, if reasonably requested by the
managing underwriters, if any, or the Holders of a majority in aggregate
principal amount, in the case of the Debentures, or the number, in the case of
the Common Stock, of the Transfer Restricted Securities being sold in connection
with such offering, (i) promptly incorporate in a Prospectus supplement or post-
effective amendment such information as the managing underwriters, if any, and
such Holders agree should be included therein, and (ii) make all required
filings of such Prospectus supplement or such post-effective amendment as soon
as practicable after the Company has received notification of the matters to be
incorporated in such Prospectus supplement or post-effective amendment;
provided, however, that the Company shall not be required to take any action
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pursuant to this Section 4(e) that would, in the opinion of counsel for the
Company, violate applicable law;
(f) Furnish to each Holder who so requests, Special Counsel and each
managing underwriter, if any, without charge, at least one conformed copy of
each Registration Statement and each amendment thereto, including financial
statements (but excluding schedules, all documents incorporated or deemed to be
incorporated therein by reference and all exhibits, unless requested in writing
by such Holder, counsel or managing underwriter);
(g) Deliver to each Holder, Special Counsel, and the underwriters, if
any, without charge, as many copies of the Prospectus or Prospectuses (including
each form of prospectus) and each amendment or supplement thereto to such
persons who reasonably request; and, unless the Company shall have given notice
to such Holder pursuant to Section
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4(c)(vi), the Company hereby consents to the use of such Prospectus and each
amendment or supplement thereto by each of the selling Holders of Transfer
Restricted Securities and the underwriters, if any, in connection with the
offering and sale of the Transfer Restricted Securities covered by such
Prospectus and any amendment or supplement thereto;
(h) Prior to any public offering of Transfer Restricted Securities,
use all reasonable efforts to register or qualify, or cooperate with the Holders
of Transfer Restricted Securities to be sold, the underwriters, if any, and
their respective counsel in connection with the registration or qualification
(or exemption from such registration or qualification) of, such Transfer
Restricted Securities for offer and sale under the securities or Blue Sky laws
of such jurisdictions within the United States as any Holder or underwriter
reasonably requests in writing, keep each such registration or qualification (or
exemption therefrom) effective during the period such Registration Statement is
required to be kept effective and do any and all other acts or things necessary
legally to enable the disposition in such jurisdictions of the Transfer
Restricted Securities covered by the applicable Registration Statement;
provided, however, that the Company shall not be required to qualify generally
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to do business in any jurisdiction where it is not then so qualified or take any
action that would subject it to general service of process in any such
jurisdiction where it is not then so subject;
(i) In connection with any sale or transfer of Transfer Restricted
Securities that will result in such securities no longer being Transfer
Restricted Securities, and unless any Transfer Restricted Securities shall be in
only book-entry form, cooperate with the Holders and the managing underwriters,
if any, to (A) facilitate the timely preparation and delivery of certificates
representing Transfer Restricted Securities to be sold, which certificates shall
not bear any restrictive legends, shall bear a CUSIP number different from the
CUSIP number for the Transfer Restricted Securities and shall be in a form
eligible for deposit with The Depository Trust Company and (B) enable such
Transfer Restricted Securities to be in such denominations and registered in
such names as the managing underwriters, if any, or Holders may request at least
two Business Days prior to any sale of Transfer Restricted Securities;
(j) Upon the occurrence of any event contemplated by Section 4(c)(vi)
hereof, as promptly as practicable,
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prepare a supplement or amendment, including, if appropriate, a post-effective
amendment, to each Registration Statement or a supplement to the related
Prospectus or any document incorporated or deemed to be incorporated therein by
reference, and file any other required document so that, as thereafter
delivered, such Prospectus will not 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, in the light of the circumstances under which
they were made, not misleading;
(k) Prior to the effective date of the first Registration Statement
relating to the Transfer Restricted Securities, to provide a CUSIP number for
the Transfer Restricted Securities to be sold pursuant to the Registration
Statement;
(l) Enter into such agreements (including an underwriting agreement in
form, scope and substance as is customary in underwritten offerings) reasonably
satisfactory to the Company and take all such other reasonable actions in
connection therewith (including those reasonably requested by the managing
underwriters, if any, or the Holders of a majority in aggregate principal
amount, in the case of the Debentures, or the number, in the case of the Common
Stock, of the Transfer Restricted Securities being sold) in order to expedite or
facilitate the disposition of such Transfer Restricted Securities, and in such
connection, whether or not an underwriting agreement is entered into and whether
or not the registration is an underwritten registration, (i) make such
representations and warranties to the Holders of such Transfer Restricted
Securities and the underwriters, if any, with respect to the business of the
Company and its subsidiaries (including with respect to businesses or assets
acquired or to be acquired by any of them), and the Registration Statement,
Prospectus and documents, if any, incorporated or deemed to be incorporated by
reference therein, in each case, in form, substance and scope as are customarily
made by issuers to underwriters in underwritten offerings and reasonably
acceptable to the Company, and confirm the same if and when requested; (ii) seek
to obtain opinions of counsel to the Company and updates thereof, which counsel
and opinions (in form, scope and substance) shall be reasonably satisfactory to
the managing underwriters, if any, and Special Counsel to the Holders of the
Transfer Restricted Securities being sold, addressed to each of the
underwriters, if any, covering the matters customarily covered in opinions
requested in underwritten
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offerings (including any such matters as may be reasonably requested by such
Special Counsel and underwriters); (iii) use all reasonable efforts to obtain
customary "cold comfort" letters and updates thereof from the independent
certified public accountants of the Company (and, if necessary, any other
independent certified public accountants of any subsidiary of the Company or of
any business acquired or to be acquired by the Company for which financial
statements and financial data is, or is required to be, included in the
Registration Statement), addressed (where reasonably possible) to each selling
Holder of Transfer Restricted Securities and each of the underwriters, if any,
such letters to be in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with underwritten
offerings; (iv) if an underwriting agreement is entered into, the same shall
contain indemnification provisions and procedures no less favorable to the
selling Holders of Transfer Restricted Securities and the underwriters, if any,
than those set forth in Section 6 hereof (or such other provisions and
procedures acceptable to the Company and Holders of a majority in aggregate
principal amount of the Transfer Restricted Securities covered by such
Registration Statement and the managing underwriters); and (v) deliver such
documents and certificates as may be reasonably requested by the Holders of a
majority in aggregate principal amount, in the case of the Debentures, or the
number, in the case of the Common Stock, of the Transfer Restricted Securities
being sold, Special Counsel or the managing underwriters, if any, to evidence
the continued validity of the representations and warranties made pursuant to
clause (i) of this Section 4(l) and to evidence compliance with any customary
conditions contained in the underwriting agreement or other agreement entered
into by the Company;
(m) Make available for inspection by a representative of the Holders
of Transfer Restricted Securities being sold, any underwriter participating in
any such disposition of Transfer Restricted Securities, if any, and any
attorney, consultant or accountant retained by such selling Holders or
underwriter, at the offices where normally kept, during reasonable business
hours, all financial and other records, pertinent corporate documents and
properties of the Company and its subsidiaries as they may reasonably request
(including with respect to business and assets acquired or to be acquired to the
extent that such information is available to the Company), and cause the
officers, directors, agents and employees of the Company and its subsidiaries
(including with respect to business assets
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acquired or to be acquired to the extent that such information is available to
the Company) to supply all information in each case reasonably requested by any
such representative, underwriter, attorney, consultant or accountant in
connection with such Registration Statement; provided, however, that any
information that is reasonably and in good faith designated by the Company in
writing as confidential at the time of delivery of such information shall be
kept confidential by such persons (and such persons shall so agree in writing),
unless (i) disclosure of such information is required by court or administrative
order or is necessary to respond to inquiries of regulatory authorities, (ii)
disclosure of such information is required by law (including any disclosure
requirements pursuant to Federal securities laws in connection with the filing
of any Registration Statement or the use of any prospectus referred to in this
Agreement), (iii) such information becomes generally available to the public
other than as a result of a disclosure or failure to safeguard by any such
person or (iv) such information becomes available to any such person from a
source other than the Company and such source is not bound by a confidentiality
agreement;
(n) Cause the Indenture to be qualified under the TIA not later than
the effective date of the first Registration Statement relating to the Transfer
Restricted Securities; and in connection therewith, cooperate with the Trustee
under the Indenture and the Holders of the Transfer Restricted Securities to
effect such changes to the Indenture, if any, as may be required for such
Indenture to be so qualified in accordance with the terms of the TIA; and
execute, and use all reasonable efforts to cause the Trustee to execute, all
customary documents as may be required to effect such changes, and all other
forms and documents (including the Form T-1) required to be filed with the SEC
to enable the Indenture to be so qualified under the TIA in a timely manner;
(o) Comply with applicable rules and regulations of the SEC and make
generally available to its security holders earning statements satisfying the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or
any similar rule promulgated under the Securities Act), no later than 45 days
after the end of any 12-month period (or 90 days after the end of any 12-month
period if such period is a fiscal year), commencing on the first day of the
first fiscal quarter after the effective date of a Registration Statement, which
statement shall cover said period, consistent with the requirements of Rule 158;
and
15
(p) (i) list all Common Stock covered by such Registration Statement
on any securities exchange on which the Common Stock is then listed or (ii)
authorize for quotation on The Nasdaq Stock Market all Common Stock covered by
such Registration Statement if the Common Stock is then so authorized for
quotation.
5. Registration Expenses.
---------------------
(a) All fees and expenses incident to the performance of or compliance
with this Agreement by the Company shall be borne by it whether or not any
Registration Statement is filed or becomes effective and whether or not any
securities are issued or sold pursuant to any Registration Statement. The fees
and expenses referred to in the foregoing sentence shall include, without
limitation, (i) all registration and filings fees (including without limitation,
fees and expenses (A) with respect to filings required to be made with the
National Association of Securities Dealers, Inc. and (B) in compliance with
securities or Blue Sky laws (including, without limitation and in addition to
that provided for in (b) below, reasonable fees and disbursements of counsel for
the underwriters or Special Counsel for the Holders in connection with Blue Sky
qualifications of the Transfer Restricted Securities and determination of the
eligibility of the Transfer Restricted Securities for investment under the laws
of such jurisdictions as the managing underwriters, if any, or Holders of a
majority in aggregate principal amount of Transfer Restricted Securities, may
reasonably designate)), (ii) printing expenses (including, without limitation,
expenses of printing certificates for Transfer Restricted Securities in a form
eligible for deposit with The Depository Trust Company and of printing
Prospectuses if the printing of Prospectuses is required by the managing
underwriters, if any, or by the Holders of a majority in aggregate principal
amount of the Transfer Restricted Securities included in any Registration
Statement, (iii) messenger, telephone and delivery expenses, (iv) fees and
disbursements of counsel for the Company and Special Counsel for the Holders
(plus any local counsel, deemed appropriate by the Holders of a majority in
aggregate principal amount of the Transfer Restricted Securities) in accordance
with the provisions of Section 5(b) hereof, (v) fees and disbursements of all
independent certified public accountants referred to in Section 4(l)(iii)
(including, without limitation, the expenses of any special audit and "cold
comfort" letters required by or incident to such
16
performance), (vi) Securities Act liability insurance, if the Company so desires
such insurance, and (vii) fees and expenses of all other persons retained by the
Company. In addition, the Company shall pay its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expense of an annual audit, and the
fees and expenses incurred in connection with the listing of the securities to
be registered on any securities exchange. Notwithstanding the foregoing or
anything in this Agreement to the contrary, each Holder shall pay all
underwriting discounts and commissions of any underwriters with respect to any
Transfer Restricted Securities sold by it.
(b) In connection with any registration hereunder, the Company shall
reimburse the Holders of the Transfer Restricted Securities being registered or
tendered for in such registration for the fees and disbursements of not more
than one firm of attorneys representing the selling Holders (in addition to any
local counsel), in an amount not to exceed $25,000 in the aggregate for all such
registrations, which firm shall be chosen by the Holders of a majority in
aggregate principal amount, in the case of the Debentures, or the number, in the
case of the Common Stock, of the Transfer Restricted Securities. Weil, Gotshal
& Xxxxxx LLP shall be Special Counsel for all purposes hereof unless and until
another Special Counsel shall have been selected by a majority in aggregate
principal amount of the Transfer Restricted Securities and notice hereof shall
have been given to the Company.
17
6. Indemnification.
---------------
(a) The Company agrees to indemnify and hold harmless (i) the Initial
Purchaser, (ii) each Holder of Transfer Restricted Securities, (iii) each
person, if any, who controls (within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act) any of the foregoing (any of the persons
referred to in this clause (iii) being hereinafter referred to as a "controlling
person"), and (iv) the respective officers, directors, partners, employees,
representatives and agents of the Initial Purchaser, each Holder of Transfer
Restricted Securities, or any controlling person (any person referred to in
clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an
"Indemnified Person"), from and against any and all losses, claims, damages,
liabilities, expenses and judgments caused by any untrue statement or alleged
untrue statement of a material fact contained in any Registration Statement,
Prospectus or form of Prospectus or in any amendment or supplement thereto or in
any preliminary Prospectus, or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein (in the case of any Prospectus or form of Prospectus or
supplement thereto, in the light of the circumstances under which they were
made) not misleading, except insofar as such losses, claims, damages,
liabilities, expenses or judgments are caused by any such untrue statement or
omission or alleged untrue statement or omission based upon information relating
to any Indemnified Person furnished in writing to the Company by or on behalf of
such Indemnified Person expressly for use therein; provided that the foregoing
--------
indemnity with respect to any preliminary Prospectus shall not inure to the
benefit of any Indemnified Person from whom the person asserting such losses,
claims, damages, liabilities, expenses and judgments purchased securities if
such untrue statement or omission or alleged untrue statement or omission made
in such preliminary Prospectus is eliminated or remedied in the Prospectus and a
copy of the Prospectus shall not have been furnished to such person in a timely
manner, unless such Prospectus was not furnished because the Company failed to
provide the Indemnified Person with sufficient copies of such corrected
Prospectus within the time period required.
(b) In case any action shall be brought against any Indemnified
Person, based upon any Registration Statement or any such Prospectus or any
amendment or supplement thereto and with respect to which indemnity may
be sought against the Company, such Indemnified Person shall
18
promptly notify the Company in writing and the Company shall assume the defense
thereof, including the employment of counsel reasonably satisfactory to such
Indemnified Person and payment of all fees and expenses. Any Indemnified Person
shall have the right to employ separate counsel in any such action and
participate in (but not control) the defense thereof, but the fees and expenses
of such counsel shall be at the expense of such Indemnified Person, unless (i)
the employment of such counsel shall have been specifically authorized in
writing by the Company, (ii) the Company shall have failed to assume the defense
and employ counsel or (iii) such Indemnified Person or Persons shall have been
advised by counsel that there may be a conflict between the positions of the
indemnifying party or parties and of the indemnified party or parties in
conducting the defense of such action or that there may be legal defenses
available to such Indemnified Person or Persons different from or in addition to
those available to the indemnifying party or parties (in which case the Company
shall not have the right to assume the defense of such action on behalf of such
Indemnified Person, it being understood, however, that the Company shall not, in
connection with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the fees and expenses of more than
one separate firm of attorneys, (in addition to any local counsel) for all such
Indemnified Persons, which firm shall be designated in writing by such
Indemnified Persons and shall be reasonably satisfactory to the Company, and
that all such fees and expenses shall be reimbursed as they are incurred). The
Company shall not be liable for any settlement of any such action effected
without its written consent but if settled with the written consent of the
Company, the Company agrees to indemnify and hold harmless any Indemnified
Person from and against any loss or liability by reason of such settlement. No
indemnifying party shall, without the prior written consent of the indemnified
party (which consent shall not be unreasonably withheld), effect any settlement
of any pending or threatened action in respect of which any indemnified party is
or could have been a party and indemnity could have been sought hereunder by
such indemnified party, unless such settlement includes an unconditional release
of such indemnified party from all liability on claims that are the subject
matter of such action.
(c) In connection with any Registration Statement in which the Holder
of Transfer Restricted Securities is participating, such Holder of Transfer
Restricted Securities
19
agrees, severally and not jointly, to indemnify and hold harmless the Company,
its directors, its officers and any person controlling the Company within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act,
to the same extent as the foregoing indemnity from the Company to each
Indemnified Person but only with reference to information relating to such
Indemnified Person furnished in writing by or on behalf of such Indemnified
Person expressly for use in such Registration Statement. In case any action
shall be brought against the Company, any of its directors, any such officer or
any person controlling the Company based on such Registration Statement and in
respect of which indemnity may be sought against any Indemnified Person, the
Indemnified Person shall have the rights and duties given to the Company (except
that if the Company shall have assumed the defense thereof, such Indemnified
Person shall not be required to do so, but may employ separate counsel therein
and participate in (but not control) the defense thereof but the fees and
expenses of such counsel shall be at the expense of such Indemnified Person),
and the Company, its directors, any such officers and any person controlling the
Company shall have the rights and duties given to the Indemnified Person, by
Section 6(b) hereof.
(d) If the indemnification provided for in this Section 6 is
unavailable to an indemnified party in respect of any losses, claims, damages,
liabilities, expenses or judgments referred to therein, then each indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages, liabilities, expenses and judgments (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and each Indemnified Person on the other hand from the offering of the
Transfer Restricted Securities or (ii) if the allocation provided by clause (i)
above 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 and each such Indemnified Person in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities, expenses or judgments, as well as any other
relevant equitable considerations. The relative fault of the Company
and each such Indemnified Person shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission to state a material fact relates to information supplied by
20
the Company or such Indemnified Person and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Initial Purchaser agree that it would not be just
and equitable if contribution pursuant to this Section 6(d) were determined by
pro rata allocation (even if the Indemnified Persons were treated as one entity
for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages, liabilities, expenses or judgments referred to in
the immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 6, no
Indemnified Person shall be required to contribute any amount in excess of the
amount by which the total proceeds received by it in connection with the sale of
the Transfer Restricted Securities pursuant to this Agreement exceeds the amount
of any damages which such Indemnified Person 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 Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Indemnified Persons' obligations to contribute pursuant to this Section 6(d) are
several in proportion to the respective amount of Transfer Restricted Securities
included in and sold pursuant to any such Registration Statement by each
Indemnified Person and not joint.
(e) The agreements contained in this Section 6 shall survive the sale
of the Transfer Restated Securities pursuant to any Registration Statement and
shall remain in full force and effect, regardless of any investigation made by
or on behalf of any Indemnified Person.
21
7. Rules 144 and 144A.
------------------
The Company shall use all reasonable efforts to file the reports
required to be filed by it under the Securities Act and the Exchange Act in a
timely manner and, if at any time it is not required to file such reports but in
the past had been required to or did file such reports, it will, upon the
request of any Holder, make available other information as required by, and so
long as necessary to permit sales of, its Transfer Restricted Securities
pursuant to Rule 144 and Rule 144A. Notwithstanding the foregoing, nothing in
this Section 7 shall be deemed to require the Company to register any of its
securities pursuant to the Exchange Act.
8. Underwritten Registrations.
--------------------------
If any of the Transfer Restricted Securities covered by the Shelf
Registration Statement are to be sold in an underwritten offering, the
investment banker or investment bankers and manager or managers that will
administer the offering will be investment bankers of recognized national
standing selected by the Holders of a majority in aggregate principal amount, in
the case of the Debentures, or the number, in the case of the Common Stock, of
such Transfer Restricted Securities included in such offering, subject to the
consent of the Company (which will not be unreasonably withheld or delayed).
No person may participate in any underwritten registration hereunder
unless such person (i) agrees to sell such person's Transfer Restricted
Securities on the basis reasonably provided in any underwriting arrangements
approved by the persons entitled hereunder to approve such arrangements and (ii)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the terms
of such underwriting arrangements.
9. Miscellaneous.
-------------
(a) Remedies. In the event of a breach by the Company, or by a Holder
--------
of Transfer Restricted Securities, of any of their obligations under this
Agreement, each Holder of Transfer Restricted Securities or the Company,
respectively, in addition to being entitled to exercise all rights granted by
law, including recovery of damages, will be entitled to specific performance of
its rights under this Agreement. The Company and each Holder of Transfer
22
Restricted Securities agree that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of any of the
provisions of this Agreement and hereby further agree that, in the event of any
action for specific performance in respect of such breach, they shall waive the
defense that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company shall not enter into any
--------------------------
agreement with respect to its securities that is inconsistent with the rights
granted to the holders of Transfer Restricted Securities in this Agreement or
otherwise conflicts with the provisions hereof. Other than registration rights
granted to holders of the Company's 5-3/4% Convertible Subordinated Debentures
due 2006, the Company is not currently a party to any agreement granting any
registration rights with respect to any of its securities to any person which
conflicts with the Company's obligations hereunder or gives any other party the
right to include any securities in any Registration Statement filed pursuant
hereto, except for such rights and conflicts as have been irrevocably waived.
Without limiting the generality of the foregoing, without the written consent of
the Holders of a majority in aggregate principal amount in the case of the
Debentures, or the number, in the case of Common Stock, of the Transfer
Restricted Securities, the Company shall not grant to any person the right to
request it to register any of its securities under the Securities Act unless the
rights so granted are subject in all respect to the prior rights of the holders
of Transfer Restricted Securities set forth herein, and are not otherwise in
conflict or inconsistent with the provisions of this Agreement.
(c) No Adverse Action Affecting the Transfer Restricted Securities.
--------------------------------------------------------------
Subject to the Company's right to suspend use of the Prospectus pursuant to
Section 2(d) hereof, or give a notice pursuant to Section 4(c)(vi) hereof, the
Company will not take any action with respect to the Transfer Restricted
Securities which would adversely affect the ability of any of the Holders of
Transfer Restricted Securities to include such Transfer Restricted Securities in
a registration undertaken pursuant to this Agreement.
(d) No Piggyback on Registrations. The Company shall not grant to any
-----------------------------
of its security holders (other than the Holders of Transfer Restricted
Securities in such capacity) the right to include any of its securities in any
23
Shelf Registration Statement other than Transfer Restricted Securities.
(e) Amendments and Waivers. The provisions of this Agreement,
----------------------
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, without the written consent of the Holders of a majority in
aggregate principal amount, in the case of the Debentures, or the number, in the
case of the Common Stock, of the Transfer Restricted Securities.
Notwithstanding the foregoing, a waiver or consent to depart from the provisions
hereof with respect to a matter that relates exclusively to the rights of
Holders of Transfer Restricted Securities whose securities are being sold
pursuant to a Registration Statement and that does not directly or indirectly
affect the rights of other Holders of Transfer Restricted Securities may be
given by Holders of a majority in aggregate principal amount, in the case of the
Debentures, or the number, in the case of the Common Stock, of the Transfer
Restricted Securities being sold by such Holders pursuant to such Registration
Statement; provided, however, that the provisions of this sentence may not be
-------- -------
amended, modified, or supplemented except in accordance with the provisions of
the immediately preceding sentence.
(f) Notices. All notices and other communications provided for herein
-------
shall be made in writing by hand-delivery, next-day air courier, certified
first-class mail, return receipt requested or telecopy:
(i) if to a Holder of Transfer Restricted Securities, to the address
of such Holder as it appears in the Debenture or Common Stock register of the
Company, as
24
applicable; and
(ii) if to the Company, to:
Comverse Technology, Inc.
000 Xxxxxxxxx Xxxx Xxxxx
Xxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
with a copy to:
Kramer, Levin, Naftalis & Xxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxx, Esq.
(iii) if to the Special Counsel, to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
or such other Special Counsel at such other address and telecopy number as a
majority in aggregate principal amount of the Transfer Restricted Securities
shall have given notice to the Company as contemplated by Section 5(b) hereof.
Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given, when delivered by hand,
if personally delivered; one Business Day after being timely delivered to a
next-day air courier, five Business Days after being deposited in the mail,
postage prepaid, if mailed; and when receipt is acknowledged by the recipient's
telecopier machine, if telecopied.
(g) Successors and Assigns. This Agreement shall inure to the benefit
----------------------
of and be binding upon the successors and permitted assigns of each of the
parties and shall inure to the benefit of each existing and future Holder of
Transfer Restricted Securities. The Company may not assign its rights or
obligations hereunder without the prior written consent of each Holder of
Transfer Restricted Securities, other than by operation of law pursuant to a
25
merger or consolidation to which the Company is a party. In the event the
Debentures become convertible into common stock of another person pursuant to
Section 12.11 of the Indenture, the Company shall cause such person to assume
the Company's obligations hereunder.
(h) 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.
(i) Governing Law; Submission to Jurisdiction.
-----------------------------------------
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED
WITHIN THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
THE COMPANY HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE
COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL
COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF
ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND
IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS. THE COMPANY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY
SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY
SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.
(j) Severability. The remedies provided herein are cumulative and not
------------
exclusive of any remedies provided by law. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any
26
of such that may be hereafter declared invalid, illegal, void or unenforceable.
(k) Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof. All
references made in this Agreement to "Section" and "paragraph" refer to such
Section or paragraph of this Agreement, unless expressly stated otherwise.
(l) Attorneys' Fees. In any action or proceeding brought to enforce
---------------
any provision of this Agreement, or where any provision hereof is validly
asserted as a defense, the prevailing party, as determined by the court, shall
be entitled to recover its reasonable attorneys' fees in addition to any other
available remedy.
27
IN WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be duly executed as of the date first written above.
COMVERSE TECHNOLOGY, INC.
By:
----------------------------------
Name:
Title:
XXXXXX BROTHERS INC.
By:
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Name:
Title:
