Exhibit 4.6
MINDSPEED TECHNOLOGIES, INC.
WARRANTS TO PURCHASE COMMON STOCK
REGISTRATION RIGHTS AGREEMENT
June 27, 2003
Conexant Systems, Inc.
0000 Xxxxxxxx Xxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000-0000
Dear Sirs:
Mindspeed Technologies, Inc., a Delaware corporation (the "COMPANY"),
proposes to issue and deliver to Conexant Systems, Inc., a Delaware corporation
("CONEXANT"), warrants (the "WARRANTS") to purchase up to thirty million
(30,000,000) shares of common stock, par value $.01 per share, together with the
associated preferred share purchase rights, of the Company (the "COMMON STOCK"),
in connection with the distribution of all outstanding Common Stock on a pro
rata basis to the holders of the common stock of Conexant (the "DISTRIBUTION").
In connection with the Distribution, the Company agrees with Conexant, for the
benefit of (i) Conexant and (ii) the holders of the Warrants and the Common
Stock issuable upon exercise of the Warrants (collectively, the "SECURITIES")
from time to time until such time as the Securities have been sold pursuant to a
Shelf Registration Statement (as defined below) (each of the forgoing, including
Conexant, a "HOLDER" and collectively, the "HOLDERS"), as follows:
1. Shelf Registration. (a) The Company shall, at its cost, prepare and, as
promptly as practicable (but in no event more than 90 days after the date
hereof) file with the Securities and Exchange Commission (the "COMMISSION") and
thereafter use its reasonable best efforts to cause to be declared effective as
soon as practicable a registration statement on Form S-3 (the "SHELF
REGISTRATION STATEMENT") relating to: (i) the offer and resale of the Warrants;
(ii) the issuance by the Company of the Common Stock upon exercise of the
Warrants; and (iii) the offer and resale of the Common Stock issued or issuable
upon exercise of the Warrants (the "TRANSFER RESTRICTED SECURITIES") from time
to time in accordance with the methods of distribution set forth in the Shelf
Registration Statement and Rule 415 under the Securities Act of 1933, as amended
(the "SECURITIES ACT") (hereinafter, the "SHELF REGISTRATION"); provided,
however, that no Holder (other than Conexant) shall be entitled to have the
Securities held by it covered by the Shelf Registration Statement unless the
Holder agrees in writing to be bound by all the provisions of this Agreement
applicable to the Holder.
(b) The Company shall use its reasonable best efforts to keep the Shelf
Registration Statement continuously effective in order to permit the prospectus
included
therein (the "PROSPECTUS") to be lawfully delivered by the Holders of the
relevant Securities for a period beginning from the date of its effectiveness
and ending on June 27, 2013 (or for such longer period if extended pursuant to
Section 2(h)) or such shorter period that will terminate when all the Securities
covered by the Shelf Registration Statement (i) have been sold pursuant thereto
or (ii) are no longer restricted securities (as defined in Rule 144(k) under the
Securities Act, or any successor rule thereof) and, if Conexant is a Holder, it
is not then an affiliate of the Company (in any such case, such period being
called the "SHELF REGISTRATION PERIOD"). The Company shall be deemed not to have
used its reasonable best efforts to keep the Shelf Registration Statement
effective during the requisite period if it voluntarily takes any action that
would result in Holders of Securities covered thereby not being able to offer
and sell the Securities during that period, unless such action is (i) required
by applicable law or (ii) taken by the Company in good faith upon the occurrence
of any event contemplated by Section 2(b)(v), and the Company thereafter
complies with the requirements of Section 2(h).
(c) Notwithstanding any other provisions of this Agreement to the
contrary, the Company shall cause the Shelf Registration 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 in all
material respects with the applicable requirements of the Securities Act and the
rules and regulations of the Commission 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 light of
the circumstances under which they were made, not misleading.
2. Registration Procedures. In connection with the Shelf Registration
contemplated by Section 1, the following provisions shall apply:
(a) The Company shall (i) furnish to Conexant, prior to the filing thereof
with the Commission, a copy of the Shelf Registration Statement and each
amendment thereof and each supplement, if any, to the Prospectus included
therein and, in the event that Conexant is participating in the Shelf
Registration Statement, shall use its reasonable best efforts to reflect in each
such document, when so filed with the Commission, such comments as Conexant
reasonably may propose; and (ii) include the names of the Holders who propose to
sell Securities pursuant to the Shelf Registration Statement as selling
securityholders.
(b) The Company shall give written notice to the Holders of the Securities
(which notice pursuant to clauses (ii)-(v) shall be accompanied by an
instruction to suspend the use of the Prospectus until the requisite changes
have been made):
(i) when the Shelf Registration Statement or any amendment thereto has
been filed with the Commission and when the Shelf Registration Statement or
any post-effective amendment thereto has become effective;
(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;
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(iii) of the issuance by the Commission of any stop order suspending the
effectiveness of the Shelf Registration Statement or the initiation of any
proceedings for that purpose;
(iv) of the receipt by the Company or its legal counsel of any
notification with respect to the suspension of the qualification of the
Securities for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose; and
(v) of the happening of any event that requires the Company to make
changes in the Shelf Registration Statement or the Prospectus in order that
the Shelf Registration Statement or the Prospectus does 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 case of the
Prospectus, in light of the circumstances under which they were made) not
misleading, which written notice need not provide any detail as to the nature
of such event.
(c) The Company shall make every reasonable effort to obtain the
withdrawal at the earliest possible time of any order suspending the
effectiveness of the Shelf Registration Statement.
(d) The Company shall furnish to each Holder of the Securities included
within the coverage of the Shelf Registration, without charge, at least one copy
of the Shelf Registration Statement and any post-effective amendment thereto,
including financial statements and schedules, and, if the Holder so requests in
writing, all exhibits thereto (including those, if any, incorporated by
reference).
(e) The Company shall, during the Shelf Registration Period, deliver to
each Holder of Securities included within the coverage of the Shelf
Registration, without charge, as many copies of the Prospectus (including each
preliminary Prospectus) included in the Shelf Registration Statement and any
amendment or supplement thereto as such person may reasonably request. The
Company consents, subject to the provisions of this Agreement, to the use of the
Prospectus or any amendment or supplement thereto by each of the selling Holders
of the Securities in connection with the offering and sale of the Securities
covered by the Prospectus, or any amendment or supplement thereto, included in
the Shelf Registration Statement.
(f) Prior to any public offering of the Securities pursuant to the Shelf
Registration Statement, the Company shall register or qualify or cooperate with
the Holders of the Securities included therein and their respective counsel in
connection with the registration or qualification of the Securities for offer
and sale under the securities or "blue sky" laws of such states of the United
States as any Holder of the Securities reasonably requests in writing and do any
and all other acts or things necessary or advisable to enable the offer and sale
in such jurisdictions of the Securities covered by the Shelf Registration
Statement; provided, however, that the Company shall not be required to (i)
qualify generally to do business in any jurisdiction where it is not then so
qualified
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or (ii) take any action which would subject it to general service of process or
to taxation in any jurisdiction where it is not then so subject.
(g) The Company shall cooperate with the Holders of the Securities to
facilitate the timely preparation and delivery of certificates representing the
Securities to be sold pursuant to any Shelf Registration Statement free of any
restrictive legends and in such denominations and registered in such names as
the Holders may request a reasonable period of time prior to sales of the
Securities pursuant to the Shelf Registration Statement.
(h) Upon the occurrence of any event contemplated by paragraphs (ii)
through (v) of Section 2(b) during the period for which the Company is required
to maintain an effective Shelf Registration Statement, the Company shall as
required hereby prepare and file a post-effective amendment to the Shelf
Registration Statement or an amendment or supplement to the Prospectus and any
other required document so that, as thereafter delivered to the Holders or
purchasers of the Securities, the Prospectus will not contain an 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 light of the
circumstances under which they were made, not misleading; provided, however,
that the Company may delay filing and distributing any such supplement or
amendment (and continue the suspension of the use of the Prospectus) if the
Company determines in good faith that such supplement or amendment would, in the
reasonable judgment of the Company, (i) interfere with or affect the negotiation
or completion of a transaction that is being contemplated by the Company or (ii)
involve initial or continuing disclosure obligations that are not in the best
interests of the Company's stockholders at such time; provided, further, that
neither such delay nor such suspension shall extend for a period of more than 45
consecutive days or an aggregate of 90 days in any twelve-month period. If the
Company notifies the Holders in accordance with paragraphs (ii) through (v) of
Section 2(b) to suspend the use of the Prospectus until the requisite changes to
the Prospectus have been made, then the Holders shall suspend use of the
Prospectus, and the period of effectiveness of the Shelf Registration Statement
provided for in Section 1(b) shall be extended by the number of days from and
including the date of the giving of such notice to and including the date when
the Holders shall have received such amended or supplemented Prospectus pursuant
to this Section 2(h).
(i) Not later than the effective date of the Shelf Registration Statement,
the Company will provide CUSIP numbers for the Warrants and the Common Stock
registered under the Shelf Registration Statement.
(j) The Company will comply with all rules and regulations of the
Commission to the extent and so long as they are applicable to the Shelf
Registration and will make generally available to its security holders (or
otherwise provide in accordance with Section 11(a) of the Securities Act) an
earnings statement satisfying the provisions of Section 11(a) of the Securities
Act, no later than 45 days after the end of a 12-month period (or 90 days, if
such period is a fiscal year) beginning with the first month of the Company's
first fiscal quarter commencing after the effective date of the Shelf
Registration Statement, which statement shall cover such 12-month period.
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(k) Each Holder agrees, by acquisition of the Securities, that no Holder
shall be entitled to sell any such Securities pursuant to the Shelf Registration
Statement or to receive a Prospectus relating thereto, unless such Holder has
furnished the Company with a Notice and Questionnaire as required pursuant to
Section 2(l) and the information set forth in the next sentence. Each Holder
agrees promptly to furnish the Company all information required to be disclosed
in order to make the information previously furnished to the Company by such
Holder not misleading and any other information regarding such Holder and the
distribution of such Securities as the Company may from time to time reasonably
request.
(l) Each Holder agrees that if such Holder wishes to sell such Holder's
Securities pursuant to the Shelf Registration Statement and related Prospectus,
it will do so in accordance with this Section 2(l). Each Holder wishing to sell
Securities pursuant to a Shelf Registration Statement and related Prospectus
agrees to deliver a properly completed and signed Notice and Questionnaire (the
form of which is attached as Annex A to this Agreement) to the Company at least
ten (10) business days prior to any intended distribution of Securities under
the Shelf Registration Statement. From and after the date the Shelf Registration
Statement is declared effective, the Company shall, as promptly as is
practicable after the date a Notice and Questionnaire is delivered, and in any
event within ten (10) business days after such date, (i) if required by law,
file with the Commission a post-effective amendment to the Shelf Registration
Statement or prepare and, if required by applicable law, file a supplement to
the related Prospectus or a supplement or amendment to any document incorporated
therein by reference or file any other required document so that the Holder
delivering such Notice and Questionnaire is named a selling securityholder in
the Shelf Registration Statement and the related Prospectus in such a manner as
to permit such Holder to deliver the Prospectus to purchasers of the Securities
in accordance with applicable law and, if the Company shall file a
post-effective amendment to the Shelf Registration Statement, use all reasonable
efforts to cause such post-effective amendment to be declared effective under
the Securities Act as promptly as practical, but in any event by the date that
is thirty (30) business days after the date such post-effective amendment is
required by this clause to be filed; (ii) provide the Holder copies of any
documents filed pursuant to this Section; and (iii) notify the Holder as
promptly as practicable after the effectiveness under the Securities Act of any
post-effective amendment filed pursuant to this Section; provided, that if such
Notice and Questionnaire is delivered during a period in which the use of the
Prospectus is suspended pursuant to Section 2(b), the Company shall so inform
the Holder delivering such Notice and Questionnaire and shall take the actions
set forth in clauses (i), (ii) and (iii) above upon expiration of such
suspension period. Notwithstanding anything contained herein to the contrary,
the Company shall be under no obligation to name any Holder that has not
supplied the requisite information required by this Section as a selling
securityholder in the Shelf Registration Statement and related Prospectus and
any amendment or supplement thereto; provided, however, that any Holder that has
subsequently supplied the requisite information required by this Section
pursuant to the provisions of this Section (whether or not the Holder has
supplied the requisite information required by this Section at the time the
Shelf Registration Statement was declared effective) shall be named as a selling
securityholder in the Shelf
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Registration Statement or related Prospectus in accordance with the requirements
of this Section.
(m) The Company shall enter into such customary agreements (including, if
requested, an underwriting agreement in customary form) and take all such other
actions, if any, as any Holder shall reasonably request in order to facilitate
the disposition of the Securities pursuant to the Shelf Registration; provided,
however, that the Company shall not be required to facilitate an underwritten
offering pursuant to a Shelf Registration Statement by any Holders unless the
offering relates to Securities having a fair market value of at least $10
million.
(n) The Company shall (i) make reasonably available for inspection by the
Holders, any underwriter participating in any disposition pursuant to the Shelf
Registration Statement and any attorney, accountant or other agent retained by
the Holders or any such underwriter, all relevant financial and other records,
pertinent corporate documents and properties of the Company and (ii) cause the
Company's officers, directors, employees, accountants and auditors to supply all
relevant information reasonably requested by the Holders or any such
underwriter, attorney, accountant or agent in connection with the Shelf
Registration Statement, in each case, as shall be reasonably necessary to enable
such persons to conduct a reasonable investigation within the meaning of Section
11 of the Securities Act; provided, however, that the foregoing inspection and
information gathering shall be coordinated on behalf of the Holders by Conexant
(or by another representative designated by and on behalf of the Holders if
Conexant is not participating in the disposition) and on behalf of the other
parties, by one counsel designated by and on behalf of such other parties as
described in Section 3. The Holders shall hold, and shall cause any such
underwriter, and any attorney, accountant or other agent retained by the Holders
or any such underwriter to hold, in strict confidence any and all confidential
information received by them pursuant to this Section 2(n), exercising the same
care with respect to such information as it takes to preserve confidentiality
for its own similar information.
(o) In the event of an underwritten offering, the Company shall use its
reasonable best efforts to cause (i) its counsel to deliver an opinion and
updates thereof relating to the Securities in customary form addressed to the
Holders and the managing underwriters, if any, thereof, and dated, in the case
of the initial opinion, the effective date of the Shelf Registration Statement
(it being agreed that the matters to be covered by such opinion shall include,
subject to customary assumptions and other qualifications, the due incorporation
and good standing of the Company and its subsidiaries; the qualification of the
Company and its subsidiaries to transact business as foreign corporations; the
due authorization, execution and delivery of the relevant agreement of the type
referred to in Section 2(m); the due authorization, execution, authentication
and issuance, and the validity and enforceability, of the Securities; the
absence of material legal or governmental proceedings involving the Company and
its subsidiaries; the absence of governmental approvals required to be obtained
in connection with the Shelf Registration Statement, the offering and sale of
the Securities, or any agreement of the type referred to in Section 2(m); the
compliance as to form of the Shelf Registration Statement and any documents
incorporated by reference therein with the requirements of the Securities Act,
and, 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, the absence from the Shelf Registration Statement and the
Prospectus included therein, as then amended or supplemented, and from any
documents incorporated by reference therein of an untrue statement of a material
fact or the omission to state therein a material
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fact required to be stated therein or necessary to make the statements therein
not misleading (in the case of any such documents, in the light of the
circumstances existing at the time that such documents were filed with the
Commission under the Securities Exchange Act of 1934, as amended (the "EXCHANGE
ACT")); (ii) its officers to execute and deliver all customary documents and
certificates and updates thereof requested by any underwriters of the
Securities; and (iii) its independent public accountants and the independent
public accountants with respect to any other entity for which financial
information is provided in the Shelf Registration Statement to provide to the
selling Holders of the applicable Securities and any underwriter therefor a
comfort letter in customary form and covering matters of the type customarily
covered in comfort letters in connection with primary underwritten offerings,
subject to receipt of appropriate documentation as contemplated, and only if
permitted, by Statement of Auditing Standards No. 72.
(p) The Company shall use its reasonable best efforts to take all other
steps necessary to effect the registration of the Securities covered by a Shelf
Registration Statement contemplated hereby.
3. Registration Expenses. (a) The Company shall bear all fees and expenses
in connection with the performance of its obligations hereunder, whether a Shelf
Registration Statement is filed or becomes effective, and shall bear or
reimburse the Holders of Securities covered by the Shelf Registration Statement
for reasonable fees and disbursements of not more than one counsel, designated
by Conexant (for so long as Conexant is a Holder) or, if Conexant is no longer a
Holder, by the Holders of a majority in interest of the Securities covered by
the Shelf Registration Statement, in each case, to act as counsel for the
Holders in connection therewith.
(b) In connection with any underwritten Shelf Registration Statement, the
participating Holders shall be responsible for the payment of any and all
underwriters and brokers and dealers discounts and selling commissions and such
discounts and commissions shall be borne by the participating Holders in
proportion to the number of Securities sold by such Holders.
4. Indemnification. (a) The Company agrees to indemnify and hold harmless
each Holder and each person, if any, who controls the Holder within the meaning
of the Securities Act or the Exchange Act (each Holder, and such controlling
persons are referred to collectively as the "INDEMNIFIED PARTIES") from and
against any losses, claims, damages or liabilities, joint or several, or any
actions in respect thereof (including, but not limited to, any losses, claims,
damages, liabilities or actions relating to purchases and sales of the
Securities) to which each Indemnified Party may become subject under the
Securities Act, the Exchange Act or otherwise, insofar as such losses, claims,
damages, liabilities or actions arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the Shelf
Registration Statement or Prospectus including any document incorporated by
reference therein, or in any amendment or supplement thereto or in any
preliminary Prospectus relating to the Shelf Registration, or arise out of, or
are based upon, the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the
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statements therein not misleading, and shall reimburse, as incurred, the
Indemnified Parties for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action in respect thereof; provided, however, that (i) the Company
shall not be liable in any such case to the extent that such loss, claim, damage
or liability arises out of or is based upon any untrue statement or alleged
untrue statement or omission or alleged omission made in the Shelf Registration
Statement or Prospectus or in any amendment or supplement thereto or in any
preliminary Prospectus relating to the Shelf Registration in reliance upon and
in conformity with written information pertaining to the Holder and furnished to
the Company by or on behalf of the Holder specifically for inclusion therein and
(ii) with respect to any untrue statement or omission or alleged untrue
statement or omission made in any preliminary Prospectus relating to the Shelf
Registration Statement, the indemnity agreement contained in this subsection (a)
shall not inure to the benefit of any Holder from whom the person asserting any
such losses, claims, damages or liabilities purchased the Securities concerned,
to the extent that a Prospectus relating to the Securities was required to be
delivered by the Holder under the Securities Act in connection with such
purchase and any such loss, claim, damage or liability of the Holder results
from the fact that there was not sent or given to such person, at or prior to
the written confirmation of the sale of the Securities to such person, a copy of
the final Prospectus if the Company had previously furnished copies thereof to
the Holder; provided further, however, that this indemnity agreement will be in
addition to any liability which the Company may otherwise have to the
Indemnified Party. The Company shall also indemnify underwriters, their officers
and directors and each person who controls such underwriters within the meaning
of the Securities Act or the Exchange Act to the same extent as provided above
with respect to the indemnification of the Holders of the Securities if
requested by the Holders.
(b) Each Holder, severally and not jointly, will indemnify and hold
harmless the Company, its officers and directors and each person, if any, who
controls the Company within the meaning of the Securities Act or the Exchange
Act from and against any losses, claims, damages or liabilities or any actions
in respect thereof, to which the Company or any such controlling person may
become subject under the Securities Act, the Exchange Act or otherwise, insofar
as such losses, claims, damages, liabilities or actions arise out of or are
based upon any untrue statement or alleged untrue statement of a material fact
contained in the Shelf Registration Statement or Prospectus or in any amendment
or supplement thereto or in any preliminary Prospectus relating to the Shelf
Registration, or arise out of or are based upon the omission or alleged omission
to state therein a material fact necessary to make the statements therein not
misleading, but in each case only to the extent that the untrue statement or
omission or alleged untrue statement or omission was made in reliance upon and
in conformity with written information pertaining to the Holder and furnished to
the Company by or on behalf of the Holder specifically for inclusion therein;
and, subject to the limitation set forth immediately preceding this clause,
shall reimburse, as incurred, the Company for any legal or other expenses
reasonably incurred by the Company or any such controlling person in connection
with investigating or defending any loss, claim, damage, liability or action in
respect thereof. This indemnity agreement will be in addition to any liability
which the Holder may otherwise have to the Company or any of its controlling
persons.
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(c) Promptly after receipt by an indemnified party under this Section 4 of
notice of the commencement of any action or proceeding (including a governmental
investigation), such indemnified party will, if a claim in respect thereof is to
be made against the indemnifying party under this Section 4, notify the
indemnifying party of the commencement thereof; but the failure to notify the
indemnifying party shall not relieve it from any liability that it may have
under subsection (a) or (b) above except to the extent that it has been
materially prejudiced (through the forfeiture of substantive rights or defenses)
by such failure; and provided further that the failure to notify the
indemnifying party shall not relieve it from any liability that it may have to
an indemnified party otherwise than under subsection (a) or (b) above. In case
any such action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof the
indemnifying party will not be liable to such indemnified party under this
Section 4 for any legal or other expenses, other than reasonable costs of
investigation, subsequently incurred by such indemnified party in connection
with the defense thereof. No indemnifying party shall, without the prior written
consent of the indemnified party, 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 (i) includes an unconditional release of such
indemnified party from all liability on any claims that are the subject matter
of such action, and (ii) does not include a statement as to or an admission of
fault, culpability or a failure to act by or on behalf of any indemnified party.
No indemnified party shall effect any settlement of any pending or threatened
action without the prior written consent of the indemnifying party, which such
consent shall not be unreasonably withheld or delayed.
(d) If the indemnification provided for in this Section 4 is unavailable
or insufficient to hold harmless an indemnified party under subsections (a) or
(b) above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to in subsection (a) or (b)
above (i) in such proportion as is appropriate to reflect the relative benefits
received by the indemnifying party or parties on the one hand and the
indemnified party on the other from the sale of the Securities, pursuant to the
Shelf Registration, or (ii) if the allocation provided by the foregoing clause
(i) is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also
the relative fault of the indemnifying party or parties on the one hand and the
indemnified party on the other in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities (or actions in
respect thereof) as well as any other relevant equitable considerations. The
relative fault of the parties 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 the Company on the one hand or the Holder or such other indemnified
party, as the case
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may be, on the other, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The amount paid by an indemnified party as a result of the losses, claims,
damages or liabilities referred to in the first sentence of this subsection (d)
shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any action
or claim which is the subject of this subsection (d). Notwithstanding any other
provision of this subsection (d), the Holders shall not be required to
contribute any amount in excess of the amount by which the net proceeds received
by the Holders from the sale of the Securities pursuant to the Shelf
Registration Statement exceeds the amount of damages which the Holders have
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. For purposes of this subsection (d), each person,
if any, who controls such indemnified party within the meaning of the Securities
Act or the Exchange Act shall have the same rights to contribution as such
indemnified party and each person, if any, who controls the Company within the
meaning of the Securities Act or the Exchange Act shall have the same rights to
contribution as the Company.
(e) The agreements contained in this Section 4 shall survive the sale of
the Securities pursuant to the Shelf Registration Statement and shall remain in
full force and effect, regardless of any termination or cancellation of this
Agreement or any investigation made by or on behalf of any indemnified party.
5. Rule 144. The Company shall use its reasonable best 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 the Company is not required to file such
reports, it will, upon the request of any Holder, make publicly available other
information so long as necessary to permit sales of their securities pursuant to
Rule 144. The Company covenants that it will take such further action as any
Holder may reasonably request, all to the extent required from time to time to
enable the Holder to sell Transfer Restricted Securities without registration
under the Securities Act within the limitation of the exemptions provided by
Rule 144. The Company will provide a copy of this Agreement to prospective
purchasers of Securities identified to the Company by Conexant upon request.
Upon the request of any Holder, the Company shall deliver to the Holder a
written statement as to whether it has complied with such requirements.
Notwithstanding the foregoing, nothing in this Section 5 shall be deemed to
require the Company to register any of its securities pursuant to the Exchange
Act.
6. Underwritten Registrations. If any of the Transfer Restricted
Securities covered by the Shelf Registration are to be sold in an underwritten
offering, the investment banker or investment bankers and manager or managers
that will administer the offering ("MANAGING UNDERWRITERS") will be selected by
the Holders of a majority in interest of the Transfer Restricted Securities to
be included in such offering and such selection shall be subject to the
Company's consent, which shall not be unreasonably withheld or delayed.
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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.
7. Miscellaneous.
(a) Remedies. The Company acknowledges and agrees that any failure by the
Company to comply with its obligations hereunder may result in material
irreparable injury to the Holders for which there is no adequate remedy at law,
that it will not be possible to measure damages for such injuries precisely and
that, in the event of any such failure, any Holder may obtain such relief as may
be required to specifically enforce the Company's obligations hereunder.
(b) No Inconsistent Agreements. The Company will not on or after the date
of this Agreement enter into any agreement with respect to its securities that
is inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof. The rights granted to the
Holders hereunder do not in any way conflict with and are not inconsistent with
the rights granted to the holders of the Company's securities under any
agreement in effect on the date hereof.
(c) Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, except in writing by the Company and by
the holders of a majority in interest of the Securities affected by such
amendment, modification, supplement, waiver or consents. Without the written
consent of each Holder of the Securities, however, no modification may change
the provisions relating to the Liquidated Damages Payment Amount.
(d) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, first-class mail,
facsimile transmission, or air courier which guarantees overnight delivery and
addressed as set forth below, or pursuant to such other instructions as may be
designated by the party for receipt of such notice:
(1) if to Conexant:
Conexant Systems, Inc.
0000 Xxxxxxxx Xxxx
Xxxxxxx Xxxxx, XX 00000-0000
Fax No.: (000) 000-0000
Attention: Xxxxxx X. X'Xxxxxx
Senior Vice President, General
Counsel and Secretary
11
(2) if to any other Holder of the Securities, at the most current address
given by the Holder to the Company;
(3) if to the Company:
Mindspeed Technologies, Inc.
0000 XxxXxxxxx Xxxxxxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000-0000
Fax No.: (000) 000-0000
Attention: Xxxxx Xxxxxxxxxxx
Senior Vice President, Chief Financial
Officer and Treasurer
All such notices and communications shall be deemed to have been duly
given at the time delivered by hand, if personally delivered; three business
days after being deposited in the mail, postage prepaid, if mailed; when receipt
is acknowledged by recipient's facsimile machine operator, if sent by facsimile
transmission; and on the day delivered, if sent by overnight air courier
guaranteeing next day delivery.
(e) Third Party Beneficiaries. The other Holders shall be third party
beneficiaries to the agreements made hereunder between the Company, on the one
hand, and Conexant, on the other hand, and shall have the right to enforce such
agreements directly to the extent they may deem such enforcement necessary or
advisable to protect their rights or the rights of Holders hereunder.
(f) Successors and Assigns. This Agreement shall be binding upon the
Company and its successors and assigns.
(g) 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.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAWS.
By the execution and delivery of this Agreement, the Company submits to
the nonexclusive jurisdiction of any federal or state court in the City of New
York, State of New York.
(j) Severability. If any one or more of the provisions contained herein,
or the application thereof in any circumstance, is held invalid, illegal or
unenforceable, the validity, legality and enforceability of any such provision
in every other respect and of the remaining provisions contained herein shall
not be affected or impaired thereby.
12
(k) Securities Held by the Company. Whenever the consent or approval of
Holders of a specified percentage of principal amount of Securities is required
hereunder, Securities held by the Company or its affiliates (other than (i)
Conexant or (ii) subsequent Holders of Securities if such subsequent Holders are
deemed to be affiliates solely by reason of their holdings of the Securities)
shall not be counted in determining whether such consent or approval was given
by the Holders of such required percentage.
13
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between Conexant and the Company in accordance with its terms.
Very truly yours,
MINDSPEED TECHNOLOGIES, INC.
By: /s/ XXXXXXX X. XXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President and Chief
Administrative Officer
The foregoing Registration Rights
Agreement is hereby confirmed and
accepted as of the date first
above written.
CONEXANT SYSTEMS, INC.
By: /s/ XXXXXX X. X'XXXXXX
---------------------------------
Name: Xxxxxx X. X'Xxxxxx
Title: Senior Vice President, General
Counsel and Secretary
14
ANNEX A
MINDSPEED TECHNOLOGIES, INC.
FORM OF SELLING SECURITYHOLDER NOTICE AND QUESTIONNAIRE
The undersigned is the beneficial holder of warrants (the "Warrants") to
purchase shares of common stock, par value $.01 per share, together with the
associated preferred share purchase rights (the "Common Stock"), of Mindspeed
Technologies, Inc., a Delaware corporation (the "Company"), or the Common Stock
issuable upon exercise of the Warrants. The Warrants and the Common Stock
issuable upon exercise of the Warrant are referred to, collectively, as the
"Registrable Securities". The undersigned understands that the Company has filed
or intends to file with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (the "Shelf Registration
Statement") for the registration and resale under Rule 415 of the Securities Act
of 1933, as amended (the "Securities Act"), of the Registrable Securities in
accordance with the terms of the Registration Rights Agreement dated as of June
27, 2003 (the "Registration Rights Agreement") between the Company and Conexant
Systems, Inc., a Delaware corporation. A copy of the Registration Rights
Agreement is available from the Company upon request at the address set forth
below. All capitalized terms not otherwise defined herein have the meaning
ascribed thereto in the Registration Rights Agreement.
Each beneficial owner of Registrable Securities is entitled to the
benefits of the Registration Rights Agreement. In order to sell or otherwise
dispose of any Registrable Securities pursuant to the Shelf Registration
Statement, a beneficial owner of Registrable Securities generally will be
required to be named as a selling securityholder in the related prospectus,
deliver a prospectus to purchasers of Registrable Securities and be bound by
those provisions of the Registration Rights Agreement applicable to such
beneficial owner (including certain indemnification provisions, as described
below). Beneficial owners are encouraged to complete and deliver this Notice and
Questionnaire prior to the effectiveness of the Shelf Registration Statement so
that such beneficial owners may be named as selling securityholders in the
related prospectus at the time of effectiveness.
Certain legal consequences arise from being named as a selling
securityholder in the Shelf Registration Statement and the related prospectus.
Accordingly, holders and beneficial owners of Registrable Securities are advised
to consult their own securities law counsel regarding the consequences of being
named or not being named as a selling securityholder in the Shelf Registration
Statement and the related prospectus.
NOTICE
The undersigned beneficial owner (the "Selling Securityholder") of
Registrable Securities hereby gives notice to the Company of its intention to
sell or otherwise dispose of Registrable Securities beneficially owned by it and
listed below in Item 3 (unless otherwise specified under Item 3) pursuant to the
Shelf Registration Statement. The undersigned, by signing and returning this
Notice and Questionnaire, understands that it will be bound by the terms and
conditions of this Notice and Questionnaire and the Registration Rights
Agreement.
A-1
The undersigned hereby provides the following information to the Company
and represents and warrants that such information is accurate and complete:
QUESTIONNAIRE
1. (a) Full Legal Name of Selling Securityholder:
--------------------------------------------------------------------
(b) Full Legal Name of Registered Holder (if not the same as (a) above)
through which Registrable Securities listed in (3) below are held:
--------------------------------------------------------------------
(c) Full Legal Name of DTC Participant (if applicable and if not the
same as (b) above) through which Registrable Securities listed in
(3) below are held:
--------------------------------------------------------------------
2. Address for Notices to Selling Securityholder:
--------------------------------------------------------------------------
--------------------------------------------------------------------------
--------------------------------------------------------------------------
Telephone:
----------------------------------------------------------------
Fax:
--------------------------------------------------------------------
--------------------------------------------------------------------
Contact Person:
---------------------------------------------------------
3. Beneficial Ownership of Registrable Securities:
(a) Type and Principal Amount of Registrable Securities beneficially
owned:
--------------------------------------------------------------------
--------------------------------------------------------------------
(b) CUSIP No(s). of Registrable Securities beneficially owned:
--------------------------------------------------------------------
--------------------------------------------------------------------
A-2
4. Beneficial Ownership of the Company's securities owned by the Selling
Securityholder:
Except as set forth below in this Item (4), the undersigned is not the
beneficial or registered owner of any "Other Securities," defined as
securities of the Company other than the Registrable Securities listed
above in Item (3).
(a) Type and Amount of Other Securities beneficially owned by the
Selling Securityholder:
--------------------------------------------------------------------
--------------------------------------------------------------------
(b) CUSIP No(s). of such Other Securities beneficially owned:
--------------------------------------------------------------------
--------------------------------------------------------------------
5. Relationship with the Company:
Except as set forth below, neither the undersigned nor any of its
affiliates, officers, directors or principal equityholders (5% or more)
has held any position or office or has had any other material relationship
with the Company (or its predecessors or affiliates) during the past three
years.
State any exceptions here:
--------------------------------------------------------------------------
--------------------------------------------------------------------------
--------------------------------------------------------------------------
6. Plan of Distribution:
Except as set forth below, the undersigned (including its donees or
pledgees) intends to distribute the Registrable Securities listed above in
Item (3) pursuant to the Shelf Registration Statement only as follows (if
at all): Such Registrable Securities may be sold from time to time
directly by the undersigned or alternatively, through underwriters,
broker-dealers or agents. If the Registrable Securities are sold through
underwriters or broker-dealers, the Selling Securityholder will be
responsible for underwriting discounts or commissions or agent's
commissions. Such Registrable Securities may be sold in one or more
transactions at fixed prices, at prevailing market prices at the time of
sale, at varying prices determined at the time of sale, or at negotiated
prices. Such sales may be effected in transactions (which may involve
block transactions) (i) on any national securities exchange or quotation
service on which the Registrable Securities may be listed or quoted at the
time of sale, (ii) in the over-the-counter market, (iii) in transactions
otherwise than on such exchanges or services or in the over-the-counter
market, or (iv) through the writing of options. In connection with sales
of the Registrable Securities or otherwise, the undersigned may enter into
hedging transactions with
A-3
broker-dealers, which may in turn engage in short sales of the Registrable
Securities and deliver Registrable Securities to close out such short
positions, or loan or pledge Registrable Securities to broker-dealers that
in turn may sell such securities.
State any exceptions here:
--------------------------------------------------------------------------
--------------------------------------------------------------------------
--------------------------------------------------------------------------
The undersigned acknowledges that it understands its obligation to comply
with the provisions of the Securities Exchange Act of 1934, as amended, and the
rules thereunder relating to stock manipulation, particularly Regulation M
thereunder (or any successor rules or regulations), in connection with any
offering of Registrable Securities pursuant to the Shelf Registration Statement.
The undersigned agrees that neither it nor any person acting on its behalf will
engage in any transaction in violation of such provisions.
The Selling Securityholder hereby acknowledges its obligations under the
Registration Rights Agreement to indemnify and hold harmless certain persons as
set forth therein.
Pursuant to the Registration Rights Agreement, the Company has agreed
under certain circumstances to indemnify the Selling Securityholder against
certain liabilities.
In accordance with the undersigned's obligation under the Registration
Rights Agreement to provide such information as may be required by law for
inclusion in the Shelf Registration Statement, the undersigned agrees to
promptly notify the Company of any inaccuracies or changes in the information
provided herein that may occur subsequent to the date hereof at any time while
the Shelf Registration Statement remains effective. All notices hereunder and
pursuant to the Registration Rights Agreement shall be made in writing at the
address set forth below.
By signing below, the undersigned consents to the disclosure of the
information contained herein in its answers to items (1) through (6) above and
the inclusion of such information in the Shelf Registration Statement and the
related prospectus. The undersigned understands that such information will be
relied upon by the Company in connection with the preparation or amendment of
the Shelf Registration Statement and the related prospectus.
A-4
IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused
this Notice and Questionnaire to be executed and delivered either in person or
by its duly authorized agent.
Dated:
Beneficial Owner
By:
-----------------------------------------
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE TO:
Mindspeed Technologies, Inc.
0000 XxxXxxxxx Xxxxxxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxxxxxxx
Senior Vice President, Chief Financial Officer and Treasurer
A-5
