Exhibit 4.8
FORM OF REGISTRATION RIGHTS AGREEMENT
Dated as of February , 2000
between
READ-RITE CORPORATION
and
FLEETBOSTON ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "RR Agreement") is made and
entered into as of February ___, 2000, between READ-RITE CORPORATION, a Delaware
corporation (the "Company"), and FLEETBOSTON ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (the
"Distribution Agent" and "Dealer Manager" or "FleetBoston").
This RR Agreement is made pursuant to the Dealer Manager Agreement and
Distribution Agreement (the "Agreements") dated February ___ and February ___,
2000, respectively, between the Company and FleetBoston which provide as (a)
Dealer Manager you are engaged to solicit individuals and institutions to tender
their Existing Notes pursuant to and in accordance with the terms and conditions
of the Exchange Offer; and as (b) Distribution Agent for the Cash Offer you are
acting as the sole agent for the Company and not as principal, to solicit offers
for the purchase of Exchange Notes from Holders who elect to participate in the
Exchange and may purchase additional 10% Convertible Subordinated Notes due
September 1, 2004 (the "Notes") from the Company. In order to induce
FleetBoston to enter into the RR Agreement, the Company has agreed to provide
FleetBoston the registration rights set forth in this RR Agreement. The
execution of RR Agreement is a condition to the closing under the Dealer Manager
and Distribution Agreements.
In consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions.
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As used in this RR Agreement, the following capitalized defined terms
shall have the following meanings:
"Agreements" shall mean the Dealer Manager Agreement and the
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Distribution Agreement.
"1933 Act" shall mean the Securities Act of 1933, as amended from time
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to time.
"1934 Act" shall mean the Securities Exchange Act of 1934, as amended
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from time to time.
"Closing Date" shall mean the Closing Date as defined in the
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Agreements.
"Company" shall have the meaning set forth in the preamble to this RR
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Agreement and shall also include the Company's successors and subsidiaries.
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"Dealer Manager" shall have the meaning set forth in the preamble to
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this RR Agreement.
"Holder" shall mean the Dealer Manager or Distribution Agent, for so
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long as it owns any Registrable Notes.
"Indenture" shall mean the Indenture relating to the Notes dated as of
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February ___, 2000 between the Company and Norwest Bank Minnesota, National
Association, as the same may be amended from time to time in accordance
with the terms thereof.
"Person" shall mean an individual, partnership, corporation, trust or
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unincorporated organization, or a government or agency or political
subdivision thereof.
"Distribution Agent" shall have the meaning set forth in the preamble
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to this RR Agreement.
"Distribution Agreement" shall have the meaning set forth in the
----------------------
preamble to this RR Agreement.
"Prospectus" shall mean the prospectus included in a Registration
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Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a
prospectus supplement with respect to the terms of the offering of any
portion of the Registrable Notes covered by a Shelf Registration Statement,
and by all other amendments and supplements to such prospectus, and in each
case including all material incorporated by reference therein.
"Registrable Notes" shall mean the 10% Convertible Subordinated Notes
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due September 1, 2004 issued as compensation for the Exchange Offer and
Cash Offer as defined in the Agreements.
"Registration Expenses" shall mean any and all expenses incident to
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performance of or compliance by the Company with this RR Agreement,
including without limitation: (i) all SEC, stock exchange or National
Association of Securities Dealers, Inc. registration and filing fees, (ii)
all fees and expenses incurred in connection with compliance with state
securities or blue sky laws (including reasonable fees and disbursements of
counsel for any underwriters or Holders in connection with blue sky
qualification of any of the Registrable Notes), (iii) all expenses of any
Persons in preparing or assisting in preparing, word processing, printing
and distributing any Registration Statement, any Prospectus, any amendments
or supplements thereto, any
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underwriting agreements, securities sales agreements and other documents
relating to the performance of and compliance with this RR Agreement, (iv)
all fees and disbursements relating to the qualification of the Indenture
under applicable securities laws, (v) the fees and disbursements of the
Trustee and its counsel, (vi) the fees and disbursements of counsel for the
Company and, in the case of a Shelf Registration Statement, the fees and
disbursements of counsel for the Holder and (vii) the fees and
disbursements of the independent public accountants of the Company,
including the expenses of any special audits or "cold comfort" letters
required by or incident to such performance and compliance, but excluding
fees and expenses of counsel to the underwriters (other than fees and
expenses set forth in clause (ii) above) or the Holder and underwriting
discounts and commissions and transfer taxes, if any, relating to the sale
or disposition of Registrable Notes by a Holder.
"Registration Statement" shall mean any registration statement of the
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Company that covers any of the Registrable Notes pursuant to the provisions
of this RR Agreement and all amendments and supplements to any 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.
"SEC" shall mean the Securities and Exchange Commission.
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"Shelf Registration" shall mean a registration effected pursuant to
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Section 2(a) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
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statement of the Company pursuant to the provisions of Section 2(a) of this
RR Agreement which covers all of the Registrable Notes (but no other
securities unless approved by the Person or Persons who have requested the
Company to file the Self Registration Statement) on an appropriate form
under Rule 415 under the 1933 Act, or any similar rule that may be adopted
by the SEC, and all 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.
"Trustee" shall mean the trustee Norwest Bank Minnesota, National
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Association with respect to the Notes under the Indenture.
"Underwritten Registration" or "Underwritten Offering" shall mean a
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registration in which Registrable Notes are sold to an Underwriter (as
hereinafter defined) for reoffering to the public.
2. Registration Under the 1933 Act.
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(a) Demand Registration. One year after Closing the Holder of the
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Registrable Notes then outstanding may request registration under the Securities
Act of all or any portion of its Registrable Notes on Form S-1 or any similar
long-form registration. In addition, the Holder of the Registrable Notes then
outstanding may request registration under the Securities Act of all or any
portion of their Registrable Notes on Form S-2 or S-3 or any similar short-form
registration.
All requests for Demand Registrations shall be made by giving written
notice to the Company (the "Demand Notice"). Each Demand Notice shall specify
the approximate number of Registrable Notes requested to be registered. Within
ten days after receipt of any Demand Notice, the Company shall give written
notice of such requested registration to all other holders of Registrable Notes,
shall include in such registration all Registrable Notes with respect to which
the Company has received written requests for inclusion therein within 15 days
after the receipt of the Company's notice.
Demand registrations shall be short-form registrations whenever the
Company is permitted to use any applicable short form. The Company shall use
its best efforts to make short-form registrations on Form S-2 or S-3 (or any
successor form) available for the sale of Registrable Notes. The Holder of the
Registrable Notes outstanding may, in connection with any demand Registration,
require the Company to file a short-form Registration with the Securities and
Exchange Commission in accordance with and pursuant to Rule 415 promulgated
under the Securities Act (or any successor rule then in effect) (a "Shelf
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Registration"). The Company agrees to furnish to the Holders of Registrable
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Notes copies of any such supplement or amendment promptly after its being used
or filed with the SEC.
(b) Piggyback Registrations. Whenever the Company proposes to
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register any of its securities under the Securities Act (other than pursuant to
a Demand Registration) and the registration form to be used may be used for the
registration of Registrable Notes (a "Piggyback Registration"), the Company
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shall give prompt written notice to the Holder of the Registrable Notes of its
intention to effect such registration and shall include in such registration all
Registrable Notes with respect to which the Company has received written
requests for inclusion therein within 20 days after the receipt of the Company's
notice.
(c) Expenses. The Company shall pay all Registration Expenses in
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connection with the registration pursuant to Section 2(a) and 2(b). The Holder
shall pay all underwriting discounts and commissions and transfer taxes, if any,
relating to the sale or disposition of such Registrable Notes pursuant to the
Shelf Registration Statement.
(d) Effective Registration Statement. A Registration Statement
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pursuant to Section 2(a) and 2(b) hereof will not be deemed to have become
effective unless it has been declared effective by the SEC; provided, however,
that, if, after it has been declared effective, the offering of Registrable
Notes pursuant to a Shelf Registration Statement is interfered with by any
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stop order, injunction or other order or requirement of the SEC or any other
governmental agency or court, such Registration Statement will be deemed not to
have become effective during the period of such interference until the offering
of Registrable Notes pursuant to such Registration Statement may legally resume.
(e) Specific Enforcement. Without limiting the remedies available to
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the Holder, the Company acknowledges that any failure by the Company to comply
with its obligations under Section 2(a) and 2(b) hereof may result in material
irreparable injury to the Holder 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, the Holder may obtain such relief as may
be required to specifically enforce the Company's obligations under Section 2(a)
and 2(b) hereof.
3. Registration Procedures.
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In connection with the obligations of the Company with respect to the
Registration Statements pursuant to Section 2(a) and 2(b) hereof, the Company
shall as expeditiously as possible but in no event sooner than 1 year after the
Closing Date:
(a) prepare and file with the SEC a Registration Statement on the
appropriate form under the 1933 Act, which form (x) shall be selected by
the Company and (y) shall, in the case of a Shelf Registration, be
available for the sale of the Registrable Notes by the Holder thereof and
(z) shall comply as to form in all material respects with the requirements
of the applicable form and include all financial statements required by the
SEC to be filed therewith, and use its best efforts to cause such
Registration Statement to become effective and remain effective in
accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary to keep such
Registration Statement effective for the applicable period and cause each
Prospectus to be supplemented by any required prospectus supplement and, as
so supplemented, to be filed pursuant to Rule 424 under the 1933 Act;
(c) furnish to the Holder of Registrable Notes, to counsel for the
Holder, without charge, as many copies of each Prospectus, including each
preliminary Prospectus, and any amendment or supplement thereto and such
other documents as the Holder may reasonably request, in order to
facilitate the public sale or other disposition of the Registrable Notes;
and the Company consents to the use of such Prospectus and any amendment or
supplement thereto in accordance with applicable law by the Holder of
Registrable Notes in connection with the offering and sale of the
Registrable Notes covered by and in the manner described in such Prospectus
or any amendment or supplement thereto in accordance with applicable law;
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(d) use its best efforts to register or qualify the Registrable Notes
under all applicable state securities or "blue sky" laws of such
jurisdictions as the Holder of Registrable Notes covered by a Registration
Statement shall reasonably request in writing by the time the applicable
Registration Statement is declared effective by the SEC, to cooperate with
the Holder in connection with any filings required to be made with the
National Association of Securities Dealers, Inc. and do any and all other
acts and things which may be reasonably necessary or advisable to enable
the Holder to consummate the disposition in each such jurisdiction of such
Registrable Notes owned by the Holder; provided, however, that the Company
shall not be required to (i) qualify as a foreign corporation or as a
dealer in Securities in any jurisdiction where it would not otherwise be
required to qualify but for this Section 3(d), (ii) file any general
consent to service of process or (iii) subject itself to taxation in any
such jurisdiction if it is not so subject;
(e) notify the representative of the Holder and its counsel promptly
and, if requested by the Holder or counsel, confirm such advice in writing
(i) when a Registration Statement has become effective and when any post-
effective amendments and supplements thereto has been filed and become
effective, (ii) of any request by the SEC or any state securities authority
for amendments and supplements to a Registration Statement and Prospectus
or for additional information after the Registration Statement has become
effective, (iii) of the issuance by the SEC or any state securities
authority of any stop order suspending the effectiveness of a Registration
Statement or the initiation of any proceedings for that purpose, (iv) if,
between the effective date of a Registration Statement and the closing of
any sale of Registrable Notes covered thereby, the representations and
warranties of the Company contained in any underwriting agreement,
securities sales agreement or other similar agreement, if any, relating to
the offering cease to be true and correct in all material respects or if
the Company receives any notification with respect to the suspension of the
qualification of the Registrable Notes for sale in any jurisdiction or the
initiation of any proceeding for such purpose, (v) of the happening of any
event during the period a Shelf Registration Statement is effective which
makes any statement made in such Registration Statement or the related
Prospectus untrue in any material respect or which requires the making of
any changes in such Registration Statement or Prospectus in order to make
the statements therein not misleading and (vi) of any determination by the
Company that a post-effective amendment to a Registration Statement would
be appropriate;
(f) make every reasonable effort to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement at the earliest
possible moment and provide immediate notice to the Holder of the
withdrawal of any such order;
(g) furnish to the Holder of Registrable Notes, without charge, at
least one conformed copy of each Registration Statement and any post-
effective amendment
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thereto (without documents incorporated therein by reference or exhibits
thereto, unless requested);
(h) cooperate with the Holder to facilitate the timely preparation and
delivery of certificates representing Registrable Notes to be sold and not
bearing any restrictive legends and enable such Registrable Notes to be in
such denominations (consistent with the provisions of the Indenture) and
registered in such names as the selling Holder may reasonably request at
least one business day prior to the closing of any sale of Registrable
Notes;
(i) upon the occurrence of any event contemplated by Section 3(e)(v)
or (vi) hereof, use its best efforts to prepare and file with the SEC a
supplement or post-effective amendment to a Registration Statement or the
related Prospectus or any document incorporated therein by reference or
file any other required document so that, as thereafter delivered to the
purchasers of the Registrable Notes, such Prospectus will not contain any
untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading. The Company agrees to notify
the Holder to suspend use of the Prospectus as promptly as practicable
after the occurrence of such an event, and the Holder hereby agrees to
suspend use of the Prospectus upon receipt of such notice until the Company
has amended or supplemented the Prospectus to correct such misstatement or
omission;
(j) a reasonable time prior to the filing of any Registration
Statement, any Prospectus, any amendment to a Registration Statement or
amendment or supplement to a Prospectus or any document which is to be
incorporated by reference into a Registration Statement or a Prospectus
after initial filing of a Registration Statement, provide copies of such
document to the Holder and it's counsel and make such of the
representatives of the Company as shall be reasonably requested by the
Holder or it's counsel available for discussion of such document, and shall
not at any time file or make any amendment to the Registration Statement,
any Prospectus or any amendment of or supplement to a Registration
Statement or a Prospectus or any document which is to be incorporated by
reference into a Registration Statement or a Prospectus, of which the
Holder and its counsel shall not have previously been advised and furnished
a copy or to which the Holder or its counsel shall reasonably object;
(k) cause the Indenture to be qualified under the Trust Indenture Act
of 1939, as amended (the "TIA"), in connection with the registration of the
Registrable Notes, as the case may be, cooperate with the Trustee and the
Holder to effect such changes to the Indenture as may be required for the
Indenture to be so qualified in accordance with the terms of the TIA and
execute, and use its best efforts to cause the Trustee to execute, all
documents as may be required to effect such changes and all other forms and
documents
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required to be filed with the SEC to enable the Indenture to be so
qualified in a timely manner;
(l) in the case of a Shelf Registration, make available for inspection
by a representative of the Holder of the Registrable Notes, any Underwriter
participating in any disposition pursuant to such Shelf Registration
Statement, and attorneys and accountants designated by the Holder, at
reasonable times and in a reasonable manner, all financial and other
records, pertinent documents and properties of the Company, and cause the
respective officers, directors and employees of the Company to supply all
information reasonably requested by any such representative, Underwriter,
attorney or accountant in connection with a Shelf Registration Statement;
(m) if reasonably requested by the Holder of Registrable Notes covered
by a Registration Statement, (i) promptly incorporate in a Prospectus
supplement or post-effective amendment such information with respect to the
Holder as the Holder reasonably requests to be included therein and (ii)
make all required filings of such Prospectus supplement or such post-
effective amendment as soon as the Company has received notification of the
matters to be incorporated in such filing; and
(n) enter into such customary agreements and take all such other
actions in connection therewith in order to expedite or facilitate the
disposition of such Registrable Notes including, but not limited to, an
Underwritten Offering and in such connection, (i) to the extent possible,
make such representations and warranties to the Holder and, in the event of
an Underwritten Offering, any Underwriters of such Registrable Notes with
respect to the business of the Company and its subsidiaries, the
Registration Statement, Prospectus and documents incorporated by reference
or deemed incorporated by reference, if any, in each case, in form,
substance and scope as are customarily made by issuers to underwriters in
underwritten offerings and confirm the same if and when requested, (ii)
obtain opinions of counsel to the Company (which counsel and opinions, in
form, scope and substance, shall be reasonably satisfactory to the Holder
and such Underwriters and their respective counsel) addressed to the Holder
and Underwriter of Registrable Notes, covering the matters customarily
covered in opinions requested in underwritten offerings, (iii) obtain "cold
comfort" letters from the independent certified public accountants of the
Company (and, if necessary, any other certified public accountant 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 Registration Statement) addressed to the Holder and
Underwriter of Registrable Notes, such letters to be in customary form and
covering matters of the type customarily covered in "cold comfort" letters
in connection with underwritten offerings, and (iv) deliver such documents
and certificates as may be reasonably requested by the Holder, and which
are customarily delivered in underwritten offerings, to evidence the
continued validity of the representations and warranties of the Company
made pursuant to
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clause (i) above and to evidence compliance with any customary conditions
contained in an underwriting agreement.
In the case of a Shelf Registration Statement, the Company may require
the Holder of Registrable Notes to furnish to the Company such information
regarding the Holder and the proposed distribution by such Holder of such
Registrable Notes as the Company may from time to time reasonably request in
writing.
In the case of a Shelf Registration Statement, the Holder agrees that,
upon receipt of any notice from the Company of the happening of any event of the
kind described in Section 3(e)(v) or (vi) hereof, such Holder will forthwith
discontinue disposition of Registrable Notes pursuant to a Registration
Statement until such Holder's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 3(i) hereof, and, if so directed by
the Company, such Holder will deliver to the Company (at its expense) all copies
in its possession, other than permanent file copies then in such Holder's
possession, of the Prospectus covering such Registrable Notes current at the
time of receipt of such notice. If the Company shall give any such notice to
suspend the disposition of Registrable Notes pursuant to a Registration
Statement, the Company shall extend the period during which the Registration
Statement shall be maintained effective pursuant to this RR Agreement by the
number of days during the period from and including the date of the giving of
such notice to and including the date when the Holder shall have received copies
of the supplemented or amended Prospectus necessary to resume such dispositions.
The Holder of Registrable Notes covered by a Shelf Registration
Statement who desire to do so may sell such Registrable Notes in an Underwritten
Offering. In any such Underwritten Offering, the investment banker or
investment bankers and manager or managers (the "Underwriters") that will
administer the offering will be selected by the Majority Holders of the
Registrable Notes included in such offering.
4. Indemnification and Contribution.
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(a) The Company agrees to indemnify and hold harmless the Holder, and
each Person, if any, who controls the Holder within the meaning of either
Section 15 of the 1933 Act or Section 20 of the 1934 Act, or is under common
control with, or is controlled by, the Holder, from and against all losses,
claims, damages and liabilities (including, without limitation, any legal or
other expenses reasonably incurred by the Holder, or any such controlling or
affiliated Person in connection with defending or investigating any such action
or claim) caused by any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement (or any amendment thereto)
pursuant to which the Registrable Notes were registered under the 1933 Act,
including all documents incorporated therein by reference, or caused by any
omission or alleged omission to state therein a material fact required to be
stated therein or
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necessary to make the statements therein not misleading, or caused by any untrue
statement or alleged untrue statement of a material fact contained in any
Prospectus (as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto), or caused by any omission or alleged
omission to state therein a material fact necessary to make the statements
therein in light of the circumstances under which they were made not misleading,
except insofar as such losses, claims, damages or liabilities are caused by any
such untrue statement or omission or alleged untrue statement or omission based
upon information relating to the Holder furnished to the Company in writing by
the Holder expressly for use therein. In connection with any Underwritten
Offering permitted by Section 3, the Company will also indemnify the
Underwriters, if any, selling brokers, dealers and similar Notes industry
professionals participating in the distribution, their officers and directors
and each Person who controls such Persons (within the meaning of the 1933 Act
and the ▇▇▇▇ ▇▇▇) to the same extent as provided above with respect to the
indemnification of the Holder, if requested in connection with any Registration
Statement.
(b) The Holder agrees, to indemnify and hold harmless the Company, and
each of their respective directors, officers who sign the Registration Statement
and each Person, if any, who controls the Company, within the meaning of either
Section 15 of the 1933 Act or Section 20 of the 1934 Act to the same extent as
the foregoing indemnity from the Company to the Holder, but only with reference
to information relating to such Holder furnished to the Company in writing by
such Holder expressly for use in any Registration Statement (or any amendment
thereto) or any Prospectus (or any amendment or supplement thereto).
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any Person in respect of which indemnity may be
sought pursuant to either paragraph (a) or paragraph (b) above, such Person (the
"indemnified party") shall promptly notify the Person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for (a) the fees and expenses of more than one separate
firm (in addition to any local counsel)
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for the Holder and all Persons, if any, who control the Holder within the
meaning of either Section 15 of the 1933 Act or ▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇, (▇)
the fees and expenses of more than one separate firm (in addition to any local
counsel) for the Company, its directors, its officers who sign the Registration
Statement and each Person, if any, who controls the Company within the meaning
of either such Section and (c) the fees and expenses of more than one separate
firm (in addition to any local counsel) for the Holder and all Persons, if any,
who control the Holder within the meaning of either such Section, and that all
such fees and expenses shall be reimbursed as they are incurred. In such case
involving the Holder and Persons who control the Holder, such firm shall be
designated in writing by the Holder. In all other cases, such firm shall be
designated by the Company. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent but, if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel as contemplated by the second and third sentences of this paragraph,
the indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed the
indemnified party for such fees and expenses of counsel in accordance with such
request prior to the date of such settlement. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which such
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(d) If the indemnification provided for in paragraph (a) or paragraph
(b) of this Section 4 is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities, then each indemnifying
party under such paragraph, in lieu of indemnifying such indemnified party
thereunder, shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party or parties on the one hand and of the indemnified party or parties on the
other hand in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Company and the Holder 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 or by the Holder
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Holder's
respective obligations to contribute pursuant to this Section 4(d) are several
in proportion to the respective principal amount of Registrable Notes of such
Holder that were registered pursuant to a Registration Statement.
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(e) The Company and the Holder agree that it would not be just or
equitable if contribution pursuant to this Section 4 were determined by pro rata
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allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in paragraph (d) above. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages and liabilities referred to in paragraph (d) above shall be deemed to
include, subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 4, no Holder shall be required to indemnify or contribute any amount in
excess of the amount by which the total price at which Registrable Notes were
sold by such Holder exceeds the amount of any damages that such Holder has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be
entitled to contribution from any Person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 4 are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
The indemnity and contribution provisions contained in this Section 4
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
the Holder or any Person controlling the Holder, or by or on behalf of the
Company, its officers or directors or any Person controlling the Company, and
(iii) any sale of Registrable Notes pursuant to a Shelf Registration Statement.
5. Miscellaneous.
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(a) No Inconsistent Agreements. The Company has not entered into, and
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on or after the date of this RR Agreement will not enter into, any agreement
which is inconsistent with the rights granted to the Holder of Registrable Notes
in this RR Agreement or otherwise conflicts with the provisions hereof. The
rights granted to the Holder hereunder do not in any way conflict with and are
not inconsistent with the rights granted to the holders of the Company's other
issued and outstanding Notes under any such agreements.
(b) Amendments and Waivers. The provisions of this RR Agreement,
----------------------
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Company has obtained the written consent of the
Holder; provided, however, that no amendment, modification, supplement, waiver
-------- -------
or consent to any departure from the provisions of Section 4 hereof shall be
effective as against the Holder of Registrable Notes unless consented to in
writing by the Holder.
(c) Notices. All notices and other communications provided for or
-------
permitted hereunder shall be made in writing by hand-delivery, registered first-
class mail, telex, telecopier,
13
or any courier guaranteeing overnight delivery (i) if to a Holder, at the most
current address given by such Holder to the Company by means of a notice given
in accordance with the provisions of this Section 5(c), which address initially
is, with respect to the Holder, the address set forth in the Agreements; and
(ii) if to the Company, initially at the Company's address set forth in the
Agreements and thereafter at such other address, notice of which is given in
accordance with the provisions of this Section 5(c).
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt is acknowledged, if telecopied; and on
the next business day if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands, or other communications shall be
concurrently delivered by the Person giving the same to the Trustee, at the
address specified in the Indenture.
(d) Successors and Assigns. This RR Agreement shall inure to the
----------------------
benefit of and be binding upon the successors, assigns and transferees of each
of the parties, including, without limitation and without the need for an
express assignment, subsequent Holders; provided that nothing herein shall be
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deemed to permit any assignment, transfer or other disposition of Registrable
Notes in violation of the terms of the Agreements. If any transferee of any
Holder shall acquire Registrable Notes, in any manner, whether by operation of
law or otherwise, such Registrable Notes shall be held subject to all of the
terms of this RR Agreement, and by taking and holding such Registrable Notes
such Person shall be conclusively deemed to have agreed to be bound by and to
perform all of the terms and provisions of this RR Agreement and such Person
shall be entitled to receive the benefits hereof. The Holder (in its capacity
as Distribution Manager and Placement Agent) shall have no liability or
obligation to the Company with respect to any failure by a Holder to comply
with, or any breach by any Holder of, any of the obligations of such Holder
under this RR Agreement.
(e) Third Party Beneficiary. The Holder shall be the third party
-----------------------
beneficiary to the agreements made hereunder between the Company, on the one
hand, and the Holder, on the other hand, and shall have the right to enforce
such agreements directly to the extent it deems such enforcement necessary or
advisable to protect its rights or the rights of the Holder hereunder.
(f) Counterparts. This RR 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.
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(g) Headings. The headings in this RR Agreement are for convenience
--------
of reference only and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. This RR Agreement shall be governed by and
-------------
construed in accordance with the laws of the State of California.
(i) Severability. In the event that any one or more of the provisions
------------
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, 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.
(j) Purchases and Sales of Securities. The Company shall not, and
---------------------------------
shall use its best efforts to cause its affiliates (as defined in Rule 405 under
the ▇▇▇▇ ▇▇▇) not to, purchase and then resell or otherwise transfer any
Securities.
15
IN WITNESS WHEREOF, the parties have executed this RR Agreement as of
the date first written above.
READ-RITE CORPORATION
By
______________________________________
Name:
Title:
Confirmed and accepted as of
the date first above written:
FLEETBOSTON ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
By
__________________________________
Name:
Title:
