Cirrus Logic, Inc.
6% Convertible Subordinated Notes due December 15, 2003
Registration Rights Agreement
Dated as of
December 18, 1996
Xxxxxxx, Xxxxx & Co.,
Salomon Brothers Inc,
X.X. Xxxxxx Securities Inc.,
Xxxxxxxxx, Xxxxxxxx & Company LLC,
c/o Goldman, Sachs & Co.,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Cirrus Logic, Inc., a Delaware corporation (the
"Company"), proposes to issue and sell to Xxxxxxx, Xxxxx & Co.,
Salomon Brothers Inc, X.X. Xxxxxx Securities Inc. and Xxxxxxxxx
Xxxxxxxx & Company LLC (the "Purchasers") upon the terms set
forth in a purchase agreement dated December 12, 1996 (the
"Purchase Agreement") between the Purchasers and the Company,
its 6% Convertible Subordinated Notes due December 15, 2003. As
an inducement to the Purchasers to enter into the Purchase
Agreement and in satisfaction of a condition to the obligations
of the Purchasers thereunder, the Company agrees with the
Purchasers, (i) for the benefit of the Purchasers and (ii) for
the benefit of the Holders (as defined below) from time to time
of the Registrable Securities (as defined below), including the
Purchasers, as follows:
1. Definitions. Capitalized terms used herein without
definition shall have their respective meanings set forth in or
pursuant to the Purchase Agreement or the Offering Circular,
dated December 12, 1996, in respect of the Securities. As used
in this Agreement, the following capitalized defined terms shall
have the following meanings:
"Affiliate" of any specified Person means any other Person
which, directly or indirectly, is in control of, is controlled
by, or is under common control with such specified Person. For
purposes of this definition, control of a Person means the
power, direct or indirect, to direct or cause the direction of
the management and policies of such Person whether by contract
or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Agreement" shall mean this Registration Rights Agreement
as the same may be amended, supplemented or modified from time
to time in accordance with the terms hereof.
"Commission" means the United States Securities and
Exchange Commission.
"Common Stock" means the Common Stock, no par value, of
the Company and any other shares of common stock as may
constitute "Common Stock" for purposes of the Indenture.
"DTC" means The Depository Trust Company.
"Effectiveness Period" has the meaning set forth in
Section 2(b) hereof.
"Electing Holder" shall mean, with respect to any Shelf
Registration Statement, a Holder electing to sell Registrable
Securities thereunder.
"Exchange Act" means the United States Securities Exchange
Act of 1934, as amended and the rules and regulations
promulgated thereunder.
"Holder" shall mean any person that is the record owner of
Registrable Securities (and includes any person that has a
beneficial interest in any Registrable Security in book-entry
form).
"Indenture" the Indenture, dated as of December 15, 1996,
between the Company and the Trustee thereunder, pursuant to
which the Securities are being issued, as amended, modified or
supplemented from time to time in accordance with the terms
thereof.
"Issue Date" means December 23, 1996.
"Liquidated Damages" has the meaning set forth in
Section 2(c).
"Managing Underwriters" means the investment banker or
investment bankers and manager or managers that shall administer
an underwritten offering, if any, as set forth in Section 6
hereof.
"Person" shall mean an individual, partnership,
corporation, trust or unincorporated organization, or a
government or agency or political subdivision thereof.
"Prospectus" means the prospectus included in any Shelf
Registration Statement (including, without limitation, a
prospectus that discloses information previously omitted from a
prospectus filed as part of an effective registration statement
in reliance upon Rule 430A under the Securities Act), as amended
or supplemented by any prospectus supplement, with respect to
the terms of the offering of any portion of the Registrable
Securities.
"Registration Default" has the meaning set forth in
Section 2(c) hereof.
"Rule 144" shall mean Rule 144 promulgated by the
Commission pursuant to the Securities Act, as such Rule may be
amended from time to time, or any successor rule or regulation.
"Rule 144A" shall mean Rule 144A promulgated by the
Commission pursuant to the Securities Act, as such Rule may be
amended from time to time, or any successor rule or regulation.
"Rule 415" shall mean Rule 415 promulgated by the
Commission pursuant to the Securities Act, as such Rule may be
amended from time to time, or any successor rule or regulation.
"Rule 430A" shall mean Rule 430A promulgated by the
Commission pursuant to the Securities Act, as such Rule may be
amended from time to time, or any successor rule or regulation.
"Restricted Securities" shall mean all Securities required
pursuant to Section 3.5(3) of the Indenture to bear any
Restricted Securities Legend (as defined in the Indenture).
"Registrable Security" shall mean any Restricted Security
and any share of Common Stock issuable upon conversion thereof
except any such Restricted Security or share of Common Stock
which (i) has been effectively registered under the Securities
Act and sold in a manner contemplated by the Registration
Statement, (ii) has been transferred in compliance with Rule 144
under the Securities Act (or any successor provision thereto),
or is transferable pursuant to paragraph (k) of such Rule 144
(or any successor provision thereto), (iii) has been resold in
compliance with Regulation S under the Securities Act (or any
successor thereto) and does not constitute the unsold allotment
of a distributor within the meaning of Regulation S under the
Securities Act, or (iv) has otherwise been transferred and a new
Security or share of Common Stock not subject to transfer
restrictions under the Securities Act has been delivered by or
on behalf of the Company in accordance with Section 3.5(2) of
the Indenture.
"Securities" shall mean the $250,000,000 aggregate
principal amount of 6% Convertible Subordinated Notes due
December 15, 2003 of the Company being issued pursuant to the
Indenture (together with up to $50,000,000 aggregate principal
amount of such Convertible Subordinated Notes if, and to the
extent, the Purchasers' over allotment option is exercised).
"Securities Act" means the United States Securities Act of
1933, as amended and the rules and regulations promulgated
thereunder.
"Shelf Registration" means a registration effected
pursuant to Section 2 hereof.
"Shelf Registration Statement" means a shelf registration
statement of the Company pursuant to the provisions of Section 2
hereof filed with the Commission which covers some or all of the
Registrable Securities, as applicable, on an appropriate form
under Rule 415 under the Securities Act, or any similar rule
that may be adopted by the Commission, amendments and
supplements to such registration statement, including post-
effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material
incorporated by reference therein.
"Special Counsel" means any special counsel to the
Holders, determined as provided in Section 4 hereof.
"Trust Indenture Act" has the meaning set forth in
Section 1.1 of the Indenture.
"Trustee" the Trustee under the Indenture.
"underwriter" means any underwriter of Registrable
Securities in connection with an offering thereof under a Shelf
Registration Statement.
2. Shelf Registration.
(a) The Company shall, within 90 calendar days
following the Issue Date of the Securities, file with the
Commission a Shelf Registration Statement relating to the offer
and sale of the Registrable Securities by the Holders from time
to time in accordance with the methods of distribution elected
by such Holders and set forth in such Shelf Registration
Statement and, thereafter, shall use its reasonable efforts to
cause such Shelf Registration Statement to be declared effective
under the Securities Act within 180 calendar days after the
Issue Date; provided, however, that no Holder shall be entitled
to have the Registrable Securities held by it covered by such
Shelf Registration unless such Holder is in compliance with
Section 3(m) hereof.
(b) The Company shall use its reasonable efforts:
(i) To keep the Shelf Registration Statement
continuously effective in order to permit the
Prospectus forming part thereof to be usable by
Holders for a period of three years from the Issue
Date or such shorter period that will terminate upon
the earliest of the following: (A) when all the
Securities covered by the Shelf Registration
Statement have been sold pursuant to the Shelf
Registration Statement, (B) when all shares of
Common Stock issued upon conversion of any such
Securities that had not been sold pursuant to the
Shelf Registration Statement have been sold pursuant
to the Shelf Registration Statement and (C) when
there shall cease to be outstanding Registrable
Securities (in any such case, such period being
called the "Effectiveness Period"); and
(ii) After the effectiveness of the Shelf
Registration Statement, promptly upon the request of
any Holder, to take any action reasonably necessary
to register the sale of any Registrable Securities
of such Holder and to identify such Holder as a
selling securityholder.
The Company shall be deemed not to have used its reasonable
efforts to keep the Shelf Registration Statement effective
during the requisite period if the Company voluntarily takes any
action that would result in Holders of Registrable Securities
covered thereby not being able to offer and sell any such
Registrable Securities during that period, unless (i) such
action is required by applicable law, (ii) the continued
effectiveness of the Shelf Registration Statement would require
the Company to disclose a material financing, acquisition or
other corporate transaction, and the Board of Directors shall
have determined in good faith that such disclosure is not in the
reasonable interests of the Company and its Common Stockholders,
or (iii) the Board of Directors shall have determined in good
faith that there is a valid business purpose for such
suspension, and (x), in the case of clause (i) above, the
Company thereafter promptly complies with the requirements of
paragraph 3(i) below and (y) in the case of clauses (ii) and
(iii) above, the Company complies with its obligations, if any,
to pay Liquidated Damages.
(c) (1) If (i) on or prior to 90 days following
Issue Date a Shelf Registration Statement has not been filed
with the Commission or (ii) on or prior to the 180th day
following the Issue Date, such Shelf Registration Statement is
not declared effective (each, a "Registration Default"),
additional interest ("Liquidated Damages") will accrue on the
Restricted Securities from and including the date following such
Registration Default until such time as such Shelf Registration
Statement is filed or such Shelf Registration Statement is
declared effective, as the case may be. Liquidated Damages will
be paid semi-annually in arrears, with the first semi-annual
payment due on the first Interest Payment Date under the
Indenture following the date on such Liquidated Damages begin to
accrue, and will accrue at a rate per annual equal to an
additional one-quarter of one percent (0.25%) of the principal
amount, to and including the 90th day following such
Registration Default and one-half of one percent (0.50%) thereof
from and after the 91st day following such Registration Default.
In the event that Shelf Registration Statement ceases to be
effective for more than 90 days or the Company suspends the use
of the prospectus which is a part thereof for more than 90 days,
whether or not consecutive, during any 12-month period, then the
interest rate borne by Restricted Securities will increase by an
additional one-half of one percent (0.50%) per annum from the
91st day of the applicable 12-month period such Shelf
Registration Statement ceases to be effective or the Company
suspends the use of the prospectus which is a part thereof, as
the case may be, until the earlier of such time as (i) the Shelf
Registration Statement again becomes effective, (ii) the use of
the related prospectus ceases to be suspended or (iii) the
Effectiveness Period expires. Following the cure of all
Registration Defaults relating to any Restricted Securities, the
accrual of Liquidated Damages with respect to such Restricted
Securities will cease (without in any way limiting the effect of
any subsequent Registration Default). In no event shall the
Company be required to pay Liquidated Damages in excess of the
applicable maximum amount of one-half of one percent (0.50%) set
forth above, regardless of whether one or multiple Registration
Defaults exist.
(2) Liquidated Damages on the Restricted
Securities shall be paid by the Company to the Holders on each
Interest Payment Date (as defined in the Indenture) in the same
manner as for interest on such Restricted Securities as provided
in the form of Securities set forth in Section 2.2 of the
Indenture.
(3) All of the Company's obligations set
forth in this Section 2(c) which are unsatisfied to any extent
with respect to any Restricted Security at the time such
security ceases to be a Restricted Security shall survive until
such time as all such obligations with respect to such security
have been satisfied in full (notwithstanding the earlier
termination of this Agreement).
(4) Any payments due and payable pursuant to
this Section 2(c) shall be subordinated to Senior Indebtedness
(as defined in the Indenture) to the extent and in the manner
set forth in Article XIII of the Indenture.
(5) The rights of the Holders to Liquidated
Damages as set forth in this Section 2(c) is not intended to be
exclusive of any other right or remedy, and shall be in addition
to every other right and remedy given hereunder or under the
Indenture or now or hereafter existing at law or in equity or
otherwise.
3. Registration Procedures. In connection with any
Shelf Registration Statement, the following provisions shall
apply:
(a) The Company shall furnish to the Special
Counsel and Holders (if requested), prior to the filing
thereof with the Commission, a copy of any Shelf
Registration Statement, and each amendment thereof and
each amendment or supplement, if any, to the Prospectus
included therein and shall use its reasonable efforts to
reflect in each such document, when so filed with the
Commission, such comments as the Special Counsel and
Holders reasonably may propose.
(b) The Company shall take such action as may be
necessary so that (i) any Shelf Registration Statement and
any amendment thereto and any Prospectus forming part
thereof and any amendment or supplement thereto (and each
report or other document incorporated therein by reference
in each case) complies in all material respects with the
Securities Act and the Exchange Act, (ii) any Shelf
Registration Statement and any amendment thereto does not,
when it becomes effective, contain an untrue statement of
a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements
therein not misleading and (iii) any Prospectus forming
part of any Shelf Registration Statement, and any
amendment or supplement to such Prospectus, does not
include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the
statements, in the light of the circumstances under which
they were made, not misleading.
(c) (1) The Company shall advise the Purchasers
and, in the case of clause (i), the Holders and, if
requested by the Purchasers or any such Holder, confirm
such advice in writing:
(i) when a Shelf Registration
Statement and any amendment thereto has been
filed with the Commission and when the Shelf
Registration Statement or any post effective
amendment thereto has become effective; and
(ii) of any request by the Commission
for amendments or supplements to the Shelf
Registration Statement or the Prospectus
included therein or for additional
information.
(2) The Company shall advise the Electing
Holders and, if requested by any such Electing
Holder, confirm such advice in writing of:
(i) the issuance by the Commission of
any stop order suspending effectiveness of the
Shelf Registration Statement or the initiation
of any proceedings for that purpose;
(ii) the receipt by the Company of any
notification with respect to the suspension of
the qualification of the securities included
therein for sale in any jurisdiction or the
initiation of any proceeding for such purpose;
and
(iii) the happening of any event that
requires the making of any changes in the
Shelf Registration Statement or the Prospectus
so that, as of such date, the Shelf
Registration Statement and the Prospectus do
not contain an untrue statement of a material
fact and do not omit to state a material fact
required to be stated therein or necessary to
make the statements therein (in the case of
the Prospectus, in light of the circumstances
under which they were made) not misleading
(which advice shall be accompanied by an
instruction to suspend the use of the
Prospectus until the requisite changes have
been made).
(d) The Company shall use its reasonable efforts
to prevent the issuance, and if issued to obtain the
withdrawal, of any order suspending the effectiveness of
any Shelf Registration Statement at the earliest possible
time.
(e) The Company shall furnish to the Special
Counsel and each Electing Holder (if requested) with
respect to a Shelf Registration Statement, without charge,
at least one copy of such Shelf Registration Statement and
any post-effective amendment thereto, including financial
statements and schedules, and, if the Electing Holder so
requests in writing, all reports, other documents and
exhibits (including those incorporated by reference).
(f) The Company shall, during the Effectiveness
Period, deliver to each Electing Holder with respect to a
Shelf Registration Statement, without charge, as many
copies of the Prospectus (including each preliminary
Prospectus) included in such Shelf Registration Statement
and any amendment or supplement thereto as such Electing
Holder may reasonably request, and the Company consents
(except during the continuance of any event described in
Section 3(c)(2)(iii)) to the use of the Prospectus or any
amendment or supplement thereto by each of the Electing
Holders in connection with the offering and sale of the
Registrable Securities covered by the Prospectus or any
amendment or supplement thereto during the Effectiveness
Period.
(g) Prior to any offering of Registrable
Securities pursuant to any Shelf Registration Statement,
the Company shall register or qualify or cooperate with
the Special Counsel and Electing Holders in connection
with the registration or qualification of such Registrable
Securities for offer and sale under the securities or blue
sky laws of such jurisdictions as any such Electing
Holders reasonably request in writing and do any and all
other acts or things necessary or advisable to enable the
offer and sale in such jurisdictions of the Registrable
Securities covered by such Shelf Registration Statement;
provided, however, that in no event shall the Company be
obligated to (i) qualify as a foreign corporation or as a
dealer in securities in any jurisdiction where it would
not otherwise be required to so qualify but for this
Section 3(g), (ii) file any general consent to service of
process in any jurisdiction where it is not as of the date
hereof then so subject or (iii) subject itself to taxation
in any jurisdiction if it is not so subject.
(h) Unless any Registrable Securities shall be in
book-entry only form, the Company shall cooperate with the
Electing Holders to facilitate the timely preparation and
delivery of certificates representing Registrable
Securities to be sold pursuant to any Shelf Registration
Statement free of any restrictive legends and in such
permitted denominations and registered in such names as
Electing Holders may request in connection with the sale
of Registrable Securities pursuant to such Shelf
Registration Statement.
(i) Upon the occurrence of any event contemplated
by paragraph 3(c)(2)(iii) above, the Company shall
promptly prepare a post-effective amendment to any Shelf
Registration Statement or an amendment or supplement to
the related Prospectus or file any other required document
so that, as thereafter delivered to purchasers of the
Registrable Securities included therein, the Prospectus
will not include an untrue statement of a material fact or
omit to state any material fact necessary to make the
statements therein, in the light of the circumstances
under which they were made, not misleading. If the
Company notifies the Electing Holders of the occurrence of
any event contemplated by paragraph 3(c)(2)(iii) above,
the Electing Holders shall suspend the use of the
Prospectus until the requisite changes to the Prospectus
have been made.
(j) Not later than the effective date of any Shelf
Registration Statement hereunder, the Company shall
provide a CUSIP number for the Securities registered under
such Shelf Registration Statement.
(k) The Company shall use its reasonable efforts
to comply with all applicable rules and regulations of the
Commission and shall make generally available to their
securityholders or otherwise provide in accordance with
Section 11(a) of the Securities Act as soon as practicable
after the effective date of the applicable Shelf
Registration Statement an earnings statement satisfying
the provisions of Section 11(a) of the Securities Act.
(l) The Company shall cause the Indenture and the
Securities to be qualified under the Trust Indenture Act
in a timely manner; and in connection with such
qualification, the Company shall cooperate with the
Trustee under the Indenture and the Holders (as defined in
the Indenture) to effect such changes to the Indenture as
may be required for such Indenture to be so qualified in
accordance with the terms of the Trust Indenture Act; and
the Company shall execute and use all reasonable efforts
to cause the Trustee to execute, all documents that may be
required to effect such changes and all other forms and
documents required to be filed with the Commission to
enable such Indenture to be so qualified in a timely
manner.
(m) The Company may require each Electing Holder
with respect to a Shelf Registration Statement to furnish
to the Company such information regarding the Electing
Holder and the distribution of Registrable Securities held
by such Electing Holder as may be required by applicable
law or regulation for inclusion in such Shelf Registration
Statement (including, without limitation, the information
required by Item 507 of Regulation S-K of the Securities
Act), and the Company may exclude from such registration
the Registrable Securities of any Electing Holder that
fails to furnish such information within a reasonable time
after receiving such request.
(n) The Company shall enter into such customary
agreements (including underwriting agreements in customary
form) to take all other appropriate actions in order to
expedite or facilitate the registration or the disposition
of the Registrable Securities, and in connection
therewith, if an underwriting agreement is entered into
pursuant to an underwritten offering in accordance with
the provisions of Section 6, cause the same to contain
indemnification provisions and procedures substantially
identical to those set forth in Section 5 (or such other
provisions and procedures acceptable to the Managing
Underwriters, if any) with respect to all parties to be
indemnified pursuant to Section 5.
(o) The Company shall make reasonably available
for inspection by one representative of the Electing
Holders designated in writing by the Holders of a majority
of the Registrable Securities to be registered thereunder,
any underwriter participating in any disposition pursuant
to such Shelf Registration Statement, and any attorney,
accountant or other agent retained by such representative
or any such underwriter all relevant financial and other
records, pertinent corporate documents and properties of
the Company and its subsidiaries;
(p) The Company shall cause the Company's
officers, directors and employees to make reasonably
available for inspection all relevant information
reasonably requested by such representative or any such
underwriter, attorney, accountant or agent in connection
with any such Shelf Registration Statement, in each case,
as is customary for similar due diligence examinations;
provided, however, that any information that is designated
in writing by the Company, in good faith, as confidential
at the time of delivery of such information shall be kept
confidential by such representative, any Holders or any
such underwriter, attorney, accountant or agent, unless
such disclosure is made in connection with a court
proceeding or required by law, or such information becomes
available to the public generally or through a third party
without an accompanying obligation of confidentiality;
(q) The Company will use its reasonable efforts to
cause the Common Stock issuable upon conversion of the
Securities to be admitted for quotation on the Nasdaq
National Market or other stock exchange or trading system
on which the Common Stock primarily trades on or prior to
the effective date of any Shelf Registration Statement
hereunder.
(r) In the event that any broker-dealer registered
under the Exchange Act shall underwrite any Registrable
Securities or participate as a member of an underwriting
syndicate or selling group or "assist in the distribution"
(within the meaning of the Rules of Fair Practice and the
By-Laws of the National Association of Securities Dealers,
Inc. ("NASD")) thereof, whether as a Holder of such
Registrable Securities or as an underwriter, a placement
or sales agent or a broker or dealer in respect thereof,
or otherwise, assist such broker-dealer in complying with
the requirements of such Rules and By-Laws, including,
without limitation, by (A) such Rules or By-Laws,
including Schedule E thereto, shall so require, engaging a
"qualified independent underwriter" (as defined in
Schedule E) to participate in the preparation of the Shelf
Registration Statement relating to such Registrable
Securities and to exercise usual standards of due
diligence in respect thereto, (B) indemnifying any such
qualified independent underwriter to the extent of the
indemnification of underwriters provided in Section 5
hereof and (C) providing such information to such broker-
dealer as may be required in order for such broker-dealer
to comply with the requirements of the Rules of Fair
Practice of the NASD.
(s) The Company shall use its reasonable efforts
to take all other steps necessary to effect the
registration, offering and sale of the Registrable
Securities covered by the Shelf Registration Statement
contemplated hereby.
4. Registration Expenses. Except as otherwise provided
in Section 6, the Company shall bear all fees and expenses
incurred in connection with the performance of its obligations
under Sections 2 and 3 hereof and shall bear or reimburse the
Electing Holders for the reasonable fees and disbursements of a
Special Counsel designated by the Company. For purposed of this
Agreement, the Company initially appoints Shearman & Sterling as
Special Counsel; provided that the Holders of a majority of the
Registrable Securities covered by the Shelf Registration
Statement have the right pursuant to this Agreement to
substitute another firm of counsel as Special Counsel under this
Agreement.
5. Indemnification and Contribution. (a) In
connection with any Shelf Registration Statement, the Company
shall indemnify and hold harmless each Electing Holder, each
underwriter who participates in an offering of Registrable
Securities, each person, if any, who controls any of such
parties within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act and each of their respective
directors, officers, employees, trustees and agents, as follows:
(i) against any and all loss, liability, claim,
damage and expense whatsoever, including any amounts paid
in settlement of any investigation, litigation, proceeding
or claim, joint or several, as incurred, arising out of
any untrue statement or alleged untrue statement of a
material fact contained in any Shelf Registration
Statement (or any amendment thereto) covering Registrable
Securities, including all documents incorporated therein
by reference, or the omission or alleged omission
therefrom of a material fact required to be stated therein
or necessary to make the statements therein not misleading
or arising out of any untrue statement or alleged untrue
statement of a material fact contained in any Prospectus
(or any amendment or supplement thereto) or the omission
or alleged omission therefrom of a material fact necessary
in order to make the statements therein, in the light of
the circumstances under which they were made, not
misleading; provided, that the Company shall not be liable
under this clause (i) for any settlement of any action
effected without its written consent, which consent shall
not be unreasonably withheld; and
(ii) against any and all expenses whatsoever, as
incurred (including reasonable fees and disbursements of
counsel chosen by the Electing Holders, such Electing
Holder or any underwriter (except to the extent otherwise
expressly provided in Section 5(c) hereof)), reasonably
incurred in investigating, preparing or defending against
any litigation, or any investigation or proceeding by any
court or governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense
is not paid under subparagraph (i) of this Section 5(a);
provided that this indemnity shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of
an untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with written
information furnished to the Company by such Electing Holder or
any underwriter in writing expressly for use in the Shelf
Registration Statement (or any amendment thereto) or any
Prospectus (or any amendment or supplement thereto). Any
amounts advanced by the Company to an indemnified party pursuant
to this Section 5 as a result of such losses shall be returned
to the Company if it shall be finally determined by such a court
in a judgment not subject to appeal or final review that such
indemnified party was not entitled to indemnification by the
Company.
(b) Each Electing Holder shall agree, severally and not
jointly, to indemnify and hold harmless the Company, each
underwriter who participates in an offering of Registrable
Securities and the other Electing Holders and each of their
respective directors, officers (including each officer of the
Company who signed the Shelf Registration Statement), employees,
trustees and agents and each Person, if any, who controls the
Company, any underwriter or any other Electing Holder within the
meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, from and against any and all loss, liability,
claim, damage and expense whatsoever described in the indemnity
contained in Section 5(a)(i) and (ii) hereof, as incurred, but
only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Shelf Registration
Statement (or any amendment thereto) or any Prospectus (or any
amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by
such Electing Holder expressly for use in the Shelf Registration
Statement (or any amendment thereto) or any Prospectus (or any
amendment or supplement thereto); provided, however, that, no
such Electing Holder shall be liable for any claims hereunder in
excess of the amount of net proceeds received by such Electing
Holder from the sale of Registrable Securities pursuant to the
Shelf Registration Statement.
(c) Each indemnified party shall give prompt notice to
each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, enclosing a
copy of all papers served on such indemnified party, but failure
to so notify an indemnifying party shall not relieve it of any
liability which it may have to the indemnified party otherwise
than on account of this indemnity agreement. An indemnifying
party may participate at its own expense in the defense of any
such action. If an indemnifying party so elects within a
reasonable time after receipt of such notice, such indemnifying
party, jointly with any other indemnifying party, may assume the
defense of such action with counsel chosen by it and approved by
the indemnified party or parties defendant in such action,
provided that if any such indemnified party reasonably
determines that there may be legal defenses available to such
indemnified party which are different from or in addition to
those available to such indemnifying party or that
representation of such indemnifying party and any indemnified
party by the same counsel would present a conflict of interest,
then such indemnifying party or parties shall not be entitled to
assume such defense. If an indemnifying party is not entitled
to assume the defense of such action as a result of the proviso
to the preceding sentence, counsel for such indemnifying party
shall be entitled to conduct the defense of such indemnifying
party and counsel for each indemnified party or parties shall be
entitled to conduct the defense of such indemnified party or
parties. If an indemnifying party assumes the defense of an
action in accordance with and as permitted by the provisions of
this paragraph, such indemnifying party shall not be liable for
any fees and expenses of counsel for the indemnified parties
incurred thereafter in connection with such action. In no event
shall the indemnifying party or parties be liable for the fees
and expenses of more than one counsel (in addition to any local
counsel) separate from its own counsel for all indemnified
parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out
of the same general allegations or circumstances.
(d) In order to provide for just and equitable
contribution in circumstances in which the indemnity provision
agreement provided for in this Section 5 is for any reason held
to be unavailable to the indemnified parties although applicable
in accordance with its terms, the Company, and the Electing
Holders shall contribute to the aggregate losses, liabilities,
claims, damages and expenses of the nature contemplated by said
indemnity agreement incurred by the Company and the Electing
Holders, as incurred; provided that no Person guilty of
fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person that was not guilty of such
fraudulent misrepresentation. As between the Company, on the
one hand, and the Electing Holders, on the other hand, such
parties shall contribute to such aggregate losses, liabilities,
claims, damages and expenses of the nature contemplated by such
indemnity agreement in such proportion as shall be appropriate
to reflect the relative fault of the Company, on the one hand,
and the Electing Holders, on the other hand, with respect to the
statements or omissions which resulted in such loss, liability,
claim, damage or expense, or action in respect thereof, as well
as any other relevant equitable considerations. The relative
fault of the Company, on the one hand, and of the Electing
Holders, on the other hand, shall be determined by reference to,
among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the
Company, on the one hand, or by or on behalf of the Electing
Holders, on the other hand, and the parties' relative intent,
knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and the
Purchasers agree, and the Electing Holders shall agree, that it
would not be just and equitable if contribution pursuant to this
Section 5 were to be determined by pro rata allocation or by any
other method of allocation that does not take into account the
relevant equitable considerations. For purposes of this
Section 5(d), each director, officer, employee, trustee, agent
and Person, if any, who controls a Holder within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange
Act shall have the same rights to contribution as such Holder,
and each director, officer, employee, trustee and agent of the
Company, and each Person, if any, who controls the Company
within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act shall have the same rights to
contribution as the Company. No party shall be liable for
contribution with respect to any action, suit, proceeding or
claim settled without its written consent.
(e) The Company may require, as a condition to including
any Registrable Securities in any Registration Statement filed
and to entering into any underwriting agreement with respect
thereto, that the Company shall have received an undertaking
reasonably satisfactory to it from the holder of such
Registrable Securities and from each underwriter named in any
such underwriting agreement, severally and not jointly, to
comply with the provisions of paragraphs (a) through (d) of this
Section 5.
6. Underwritten Offering. The Electing Holders who
desire to do so may sell Registrable Securities in an
underwritten offering. In any such underwritten offering, the
investment banker or bankers and manager or managers that will
administer the offering will be selected by, and the
underwriting arrangements with respect thereto will be approved
by the Holders of a majority of the Registrable Securities to be
included in such offering; provided, however, that (i) such
investment bankers and managers and underwriting arrangements
must be reasonably satisfactory to the Company and (ii) the
Company shall not be obligated to arrange for more than one
underwritten offering during the Effectiveness Period. No
Holder may participate in any underwritten offering contemplated
hereby unless such Holder (a) agrees to sell such Holder's
Registrable Securities in accordance with any approved
underwriting arrangements, (b) completes and executes all
reasonable questionnaires, powers of attorney, indemnities,
underwriting agreements, lock-up letters and other documents
required under the terms of such approved underwriting
arrangements and (c) at least 20% of the outstanding Registrable
Securities are included in such underwritten offering. The
Holders participating in any underwritten offering shall be
responsible for any expenses customarily borne by selling
securityholders, including underwriting discounts and
commissions and fees and expenses of counsel to the selling
securityholders and shall reimburse the Company for the fees and
disbursements of their counsel, their independent public
accountants and any printing expenses incurred in connection
with such underwritten offerings. Notwithstanding the foregoing
or the provisions of Section 6(a) hereof, upon receipt of a
request from the Managing Underwriter or a representative of
Holders of a majority of the Registrable Securities outstanding
to prepare and file an amendment or supplement to the Shelf
Registration Statement and Prospectus in connection with an
underwritten offering, the Company may delay the filing of any
such amendment or supplement for up to 90 days if the Company in
good faith has a valid business reason for such delay.
The Company shall in connection with an underwritten
offering in accordance with the provisions of this Section:
(a) The Company shall, if requested, promptly
include or incorporate in a Prospectus supplement or post-
effective amendment to a Shelf Registration Statement,
such information as the Managing Underwriters
administering an underwritten offering of Registrable
Securities registered thereunder reasonably request to be
included therein and to which the Company does not
reasonably object and shall make all required filings of
such Prospectus supplement or post-effective amendment as
soon as practicable after they are notified of the matters
to be included or incorporated in such Prospectus
supplement or post-effective amendment;
(b) make such representations and warranties to
the Electing Holders and the underwriters in form,
substance and scope as are customarily made by the Company
to underwriters in primary underwritten offerings and
covering matters, including, but not limited to, those set
forth in the Purchase Agreement;
(c) 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) addressed to each Electing
Holder and the underwriters covering such matters as are
customarily covered in opinions requested in underwritten
offerings and such other matters as may be reasonably
requested by such Electing Holders and underwriters (it
being agreed that the matters to be covered by such
opinion or written statement by such counsel delivered in
connection with such opinions shall include in customary
form, without limitation, as of the date of the opinion
and as of the effective date of the Shelf Registration
Statement or most recent post-effective amendment thereto,
as the case may be, the absence from such Shelf
Registration Statement and the prospectus included
therein, as then amended or supplemented, including the
documents incorporated by reference therein, of an untrue
statement of a material fact or the omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein not misleading);
(d) obtain "cold comfort" letters and updates
thereof from the independent public accountants of the
Company (and, if necessary, any other independent public
accountants of any subsidiary of the Company or of any
business acquired by the Company for which financial
statements and financial data are, or are required to be,
included in the Shelf Registration Statement), addressed
to each Electing Holder and the underwriters in customary
form and covering matters of the type customarily covered
in "cold comfort" letters in connection with primary
underwritten offerings; and
(e) deliver such documents and certificates as may
be reasonably requested by any such Electing Holders and
the Managing Underwriters, including those to evidence
compliance with Section 3(i) and with any customary
conditions contained in the underwriting agreement or
other agreement entered into by the Company.
7. Miscellaneous.
(a) Other Registration Rights. The Company may
grant registration rights that would permit any Person that is a
third party the right to piggy-back on any Shelf Registration
Statement, provided that if the Managing Underwriter, if any, of
such offering delivers an opinion to the Electing Holders that
the total amount of securities which they and the holders of
such piggy-back rights intend to include in any Shelf
Registration Statement is so large as to materially adversely
affect the success of such offering (including the price at
which such securities can be sold), then only the amount, the
number or kind of securities to be offered for the account of
holders of such piggy-back rights will be reduced to the extent
necessary to reduce the total amount of securities to be
included in such offering to the amount, number or kind
recommended by the Managing Underwriter prior to any reduction
in the amount of Registrable Securities to be included.
(b) Amendments and Waivers. The provisions of
this Agreement, including the provisions of this sentence, may
not be amended, qualified, modified or supplemented, and waivers
or consents to departures from the provisions hereof may not be
given, unless the Company has obtained the written consent of
Xxxxxxx, Xxxxx & Co.
(c) Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing by
hand-delivery, first-class mail, telex, telecopier, or air
courier guaranteeing overnight delivery:
(1) if to a Holder, at the most current
address given by such Holder to the Company in
accordance with the provisions of this Section 7(c);
(2) if to the Purchasers, initially at the
address set forth in the Purchase Agreement;
(3) if to the Company, initially at its
address set forth in the Purchase Agreement; and
(4) if to the Special Counsel, the address
given by such Special Counsel to the Company in
accordance with the provisions of this Section 7(c).
All such notices and communications shall be deemed to have been
duly given when received.
The Purchasers or the Company by notice to the other may
designate additional or different addresses for subsequent
notices or communications.
(d) Successors and Assigns. This Agreement shall
inure to the benefit of and be binding upon the successors and
assigns of each of the parties and the Holders, including,
without the need for an express assignment or any consent by the
Company thereto, subsequent Holders of Registrable Securities.
The Company hereby agrees to extend the benefits of this
Agreement to any Holder of Registrable Securities and any such
Holder may specifically enforce the provisions of this Agreement
as if an original party hereto.
(e) Counterparts. This agreement may be executed
in any number of counterparts and by the parties hereto in
separate counterparts, each of which when so executed shall be
deemed to be an original and all of which taken together shall
constitute one and the same agreement.
(f) Headings. The headings in this agreement are
for convenience of reference only and shall not limit or
otherwise affect the meaning hereof.
(g) Governing Law. This agreement shall be
governed by and construed in accordance with the laws of the
State of New York, without giving effect to any provisions
relating to conflicts of laws.
(h) Severability. In the event that any one or
more of the provisions contained herein, or the application
thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in
any way impaired or affected thereby, it being intended that all
of the rights and privileges of the parties shall be enforceable
to the fullest extent permitted by law.
Please confirm that the foregoing correctly sets forth the
agreement between the Company and you.
Very truly yours,
By:
Name:
Title:
The foregoing Registration Rights Agreement is hereby confirmed
and accepted as of the date first above written.
Xxxxxxx, Sachs & Co.
Salomon Brothers Inc
X.X. Xxxxxx Securities Inc.
Xxxxxxxxx, Xxxxxxxx & Company LLC
By:
(Xxxxxxx, Sachs & Co.)
