EXHIBIT 4.3
REGISTRATION RIGHTS AGREEMENT
BY AND BETWEEN
MINDSPEED TECHNOLOGIES, INC.
AND
▇▇▇▇▇▇ BROTHERS INC.
DATED AS OF DECEMBER 8, 2004
TABLE OF CONTENTS
PAGE
----
1. Definitions............................................................1
2. Shelf Registration.....................................................4
3. Additional Interest....................................................5
4. Registration Procedures................................................6
5. Registration Expenses.................................................13
6. Indemnification and Contribution......................................14
7. Rule 144A.............................................................17
8. Participation in Underwritten Registrations...........................17
9. Selection of Underwriters.............................................17
10. Miscellaneous.........................................................17
REGISTRATION RIGHTS AGREEMENT, dated as of December 8, 2004, by and
between Mindspeed Technologies, Inc., a Delaware corporation (together with any
successor entity, herein referred to as the "ISSUER"), and ▇▇▇▇▇▇ Brothers Inc.
(the "INITIAL PURCHASER").
Pursuant to the Purchase Agreement, dated December 2, 2004, between
the Issuer and the Initial Purchaser (the "PURCHASE AGREEMENT"), the Initial
Purchaser has agreed to purchase from the Issuer up to $46,000,000 aggregate
principal amount 3.75% Convertible Senior Notes due 2009 (the "NOTES")
(including $6,000,000 aggregate principal amount if the initial purchaser
exercises its option to purchase additional Notes, as set forth in the Purchase
Agreement). The Notes initially will be convertible into fully paid,
nonassessable common stock, $0.01 par value per share, of the Issuer (the
"COMMON STOCK") on the terms, and subject to the conditions, set forth in the
Indenture (as defined herein). To induce the Initial Purchaser to purchase the
Notes, the Issuer has agreed to provide the registration rights set forth in
this Agreement pursuant to the Purchase Agreement.
The parties hereby agree as follows:
1. DEFINITIONS. As used in this Agreement, the following capitalized
terms shall have the following meanings:
ADDITIONAL INTEREST: As defined in Section 3(a) hereof.
ADDITIONAL INTEREST PAYMENT DATE: Each May 18 and November 18,
commencing May 18, 2005.
AGREEMENT: This Registration Rights Agreement, as amended, modified
or otherwise supplemented from time to time in accordance with the terms
hereof.
BROKER-DEALER: Any broker or dealer registered under the Exchange
Act.
BUSINESS DAY: A day other than a Saturday or Sunday or any day on
which banking institutions in The City of New York are authorized or
obligated by law or executive order to close.
CLOSING DATE: The date of this Agreement.
NOTES: As defined in the preamble hereto.
COMMISSION: Securities and Exchange Commission.
COMMON STOCK: As defined in the preamble hereto.
EFFECTIVENESS PERIOD: As defined in Section 2(a)(iii) hereof.
EFFECTIVENESS TARGET DATE: As defined in Section 2(a)(ii) hereof.
EXCHANGE ACT: Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission thereunder.
HOLDER: A Person who owns, beneficially or otherwise, Transfer
Restricted Securities.
INDEMNIFIED HOLDER: As defined in Section 6(a) hereof.
INDENTURE: The Indenture, dated as of December 8, 2004, between the
Issuer and ▇▇▇▇▇ Fargo Bank, N.A., as trustee (the "TRUSTEE"), pursuant to
which the Notes are to be issued, as such Indenture is amended, modified
or supplemented from time to time in accordance with the terms thereof.
INITIAL PURCHASER: As defined in the preamble hereto.
ISSUER: As defined in the preamble hereto.
MAJORITY OF HOLDERS: Registered Holders of a number of shares of the
then outstanding Common Stock constituting Transfer Restricted Securities
and an aggregate principal amount of then outstanding Notes constituting
Transfer Restricted Securities, such that the sum of such shares of Common
Stock and the shares of Common Stock issuable upon conversion of such
Notes constitute in excess of 50% of the sum of all of the then
outstanding shares of Common Stock constituting Transfer Restricted
Securities and the number of shares of Common Stock issuable upon
conversion of then outstanding Notes constituting Transfer Restricted
Securities. For purposes of the immediately preceding sentence, (i) any
Holder may elect to make any request, notice, demand, objection or other
action hereunder with respect to all or any portion of Transfer Restricted
Securities held by it and only the portion as to which such action is
taken shall be included in the numerator of the fraction described in the
preceding sentence and (ii) Transfer Restricted Securities owned, directly
or indirectly, by the Issuer or its Affiliates shall be deemed not to be
outstanding.
NASD: National Association of Securities Dealers, Inc.
PERSON: An individual, partnership, corporation, unincorporated
organization, limited liability company, trust, joint venture or a
government or agency or political subdivision thereof.
PROSPECTUS: The prospectus included in a 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 promulgated
pursuant to the Securities Act), as amended or supplemented by any
prospectus supplement and by all other amendments thereto, including
post-effective amendments, and all material incorporated by reference into
such Prospectus.
PURCHASE AGREEMENT: As defined in the preamble hereto.
QUESTIONNAIRE: As defined in Section 2(b) hereof.
QUESTIONNAIRE DEADLINE: As defined in Section 2(b) hereof.
2
RECORD HOLDER: With respect to any Additional Interest Payment Date,
each Person who is a Holder on the record date with respect to such
Additional Interest Payment Date, which record date shall be the date that
is the 15th day preceding the relevant Additional Interest Payment Date.
REGISTRATION DEFAULT: As defined in Section 3(a) hereof.
SALE NOTICE: As defined in Section 4(d) hereof.
SECURITIES ACT: Securities Act of 1933, as amended, and the rules
and resolutions of the Commission thereunder.
SHELF FILING DEADLINE: As defined in Section 2(a)(i) hereof.
SHELF REGISTRATION STATEMENT: As defined in Section 2(a)(i) hereof.
SUSPENSION NOTICE. As defined in Section 4(c) hereof.
SUSPENSION PERIOD. As defined in Section 4(b)(i) hereof.
TIA: Trust Indenture Act of 1939, as amended, and the rules and
regulations of the Commission thereunder, in each case, as in effect on
the date the Indenture is qualified under the TIA.
TRANSFER RESTRICTED SECURITIES: Each of the Notes and each of the
shares of Common Stock issued upon conversion of Notes until the earliest
of, in the case of any such Note or share(s) of Common Stock:
(i) the date on which such Notes or such shares of Common
Stock issued upon conversion thereof has been effectively registered
under the Securities Act and disposed of in accordance with the
Shelf Registration Statement;
(ii) the date on which such Notes or such shares of Common
Stock issued upon conversion thereof is transferred in compliance
with Rule 144 under the Securities Act or may be sold or transferred
by a person who is not an affiliate of the Issuer pursuant to Rule
144 under the Securities Act (or any other similar provision then in
force) without any volume or manner of sale restrictions thereunder;
or
(iii) the date on which such Notes or such shares of Common
Stock issued upon conversion ceases to be outstanding (whether as a
result of repurchase and cancellation, conversion or otherwise).
UNDERWRITTEN REGISTRATION OR UNDERWRITTEN OFFERING: A registration
in which Notes of the Issuer are sold to an underwriter for reoffering to
the public.
3
2. SHELF REGISTRATION.
(a) The Issuer shall:
(i) not later than 90 days after the date hereof (the "SHELF
FILING DEADLINE"), cause to be filed a registration statement for an
offering to be made on a continuous basis pursuant to Rule 415 under
the Securities Act (together with any amendments thereto, and
including any documents incorporated by reference therein, the
"SHELF REGISTRATION STATEMENT"), which Shelf Registration Statement
shall provide for resales of all Transfer Restricted Securities held
by Holders that have provided the information required pursuant to
the terms of Section 2(b) hereof;
(ii) use commercially reasonable efforts to cause the Shelf
Registration Statement to be declared effective by the Commission
not later than 180 days after the date hereof (the "EFFECTIVENESS
TARGET DATE"); and
(iii) use commercially reasonable efforts to keep the Shelf
Registration Statement continuously effective, supplemented and
amended as required by the provisions of Section 4(b) hereof to the
extent necessary to ensure that it (A) is available for resales by
the Holders of Transfer Restricted Securities entitled to the
benefit of this Agreement and (B) conforms with the requirements of
this Agreement and the Securities Act for a period (the
"EFFECTIVENESS PERIOD") ending on the earliest of:
(1) two years following the last date of original
issuance of Notes; or
(2) the date when the Holders of the Transfer Restricted
Securities are able to sell all Transfer Restricted Securities
immediately under Rule 144(k) under the Securities Act; or
(3) the date when all Transfer Restricted Securities are
registered under the Shelf Registration Statement and sold
pursuant thereto; or
(4) the date when all Transfer Restricted Securities
have ceased to be outstanding (whether as a result of
repurchase and cancellation, conversion or otherwise).
(b) To have its Transfer Restricted Securities included in the Shelf
Registration Statement pursuant to this Agreement, each Holder shall complete
the Selling Securityholder Notice and Questionnaire, the form of which is
contained in Annex A to the Offering Memorandum relating to the Notes (the
"QUESTIONNAIRE"). The Issuer shall mail the Questionnaire to each Holder not
less than 20 Business Days (but not more than 40 Business Days) prior to the
time the Issuer intends in good faith to have the Shelf Registration Statement
declared effective by the Commission. Holders are required to complete and
deliver the Questionnaire to the Issuer within 20 Business Days after the
Issuer's delivery thereof (the
4
"QUESTIONNAIRE DEADLINE") in order to be named as selling securityholders in the
Prospectus at the time that the Shelf Registration Statement is declared
effective. Upon receipt of a Questionnaire from a Holder on or prior to the
Questionnaire Deadline, the Issuer shall include such Holder's Transfer
Restricted Securities in the Shelf Registration Statement and the Prospectus. In
addition, promptly upon the request of a Holder given to the Issuer at any time,
the Issuer shall deliver a Questionnaire to such Holder. Any Holder that does
not complete and deliver a Questionnaire prior to the Questionnaire Deadline may
not be named as a selling securityholder in the Shelf Registration Statement at
the time that it is declared effective. Upon receipt of a completed
Questionnaire from a Holder who did not complete and deliver a Questionnaire
prior to the Questionnaire Deadline, the Issuer shall, within 30 Business Days
of such receipt, file such amendments to the Shelf Registration Statement or
supplements to a related Prospectus as are necessary to permit such Holder to
deliver such Prospectus to transferees of Transfer Restricted Securities;
provided, that (i) the Issuer shall not be obligated to file (x) more than one
(1) such pre-effective amendment or supplement for all such Holders in any one
fiscal quarter and (y) more than one (1) such post-effective amendment for all
such Holders in any one six-month period; and (ii) in no event shall the Issuer
be required to file any pre-effective amendment, post-effective amendment or
supplement unless the aggregate principal amount of all Transfer Restricted
Securities requested to be included in such amendment or supplement by all such
Holders exceeds $1,000,000.
(c) Upon receipt of written request for additional information from
the Issuer, each Holder who intends to be named as a selling securityholder in
the Shelf Registration Statement shall furnish to the Issuer in writing, within
20 Business Days after such Holder's receipt of such request, such additional
information regarding such Holder and the proposed distribution by such Holder
of its Transfer Restricted Securities, in connection with the Shelf Registration
Statement or Prospectus or Preliminary Prospectus included therein and in any
application to be filed with or under state securities law, as the Issuer may
reasonably request. In connection with all such requests for information from
Holders of Transfer Restricted Securities, the Issuer shall notify such Holders
of the requirements set forth in this paragraph regarding their obligation to
provide the information requested pursuant to this Section 2. Each Holder as to
which the Shelf Registration Statement is being effected agrees to furnish
promptly to the Issuer all information required to be disclosed in order to make
information previously furnished to the Issuer by such Holder not materially
misleading.
3. ADDITIONAL INTEREST.
(a) If:
(i) the Shelf Registration Statement is not filed with the
Commission prior to or on the Shelf Filing Deadline;
(ii) the Shelf Registration Statement has not been declared
effective by the Commission prior to or on the Effectiveness Target
Date;
(iii) except as provided in Section 4(b)(i) hereof, the Shelf
Registration Statement is filed and declared effective but, during
the Effectiveness Period, shall thereafter cease to be effective or
fails to be usable for its intended purpose
5
without being succeeded within five Business Days by a
post-effective amendment to the Shelf Registration Statement, a
supplement to the Prospectus or a report filed with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
that cures such failure and, in the case of a post-effective
amendment, is itself immediately declared effective; or
(iv) (A) prior to or on the 45th or 60th day, as the case may
be, of any Suspension Period, such suspension has not been
terminated or (B) Suspension Periods exceed an aggregate of 90 days
in any 360 day period,
(each such event referred to in foregoing clauses (i) through (iv), a
"REGISTRATION Default"), the Issuer hereby agrees to pay additional interest
("ADDITIONAL INTEREST") with respect to the Transfer Restricted Securities from
and including the day following the Registration Default to but excluding the
day on which the Registration Default has been cured, accruing at a rate, to
each holder of Notes, (x) with respect to the first 90-day period during which a
Registration Default shall have occurred and be continuing, equal to 0.25% per
annum of the principal amount of the Notes, and (y) with respect to the period
commencing on the 91st day following the day the Registration Default shall have
occurred and be continuing, equal to 0.50% per annum of the principal amount of
the Notes; provided that in no event shall Additional Interest accrue at an
aggregate rate per year exceeding 0.50% of the principal amount of the Notes. No
Additional Interest shall be payable on any Notes that have been converted into
shares of Common Stock.
(b) All accrued Additional Interest shall be paid in arrears to
Record Holders by the Issuer on each Additional Interest Payment Date by wire
transfer of immediately available funds or by federal funds check. Following the
cure of all Registration Defaults relating to any particular Note, the accrual
of Additional Interest with respect to such Note will cease. The Issuer agrees
to deliver all notices, certificates and other documents contemplated by the
Indenture in connection with the payment of Additional Interest.
All obligations of the Issuer set forth in this Section 3 that are
outstanding with respect to any Transfer Restricted Security at the time such
security ceases to be a Transfer Restricted Security shall survive until such
time as all such obligations with respect to such Transfer Restricted Security
shall have been satisfied in full. The Additional Interest set forth above shall
be the exclusive monetary remedy available to the Holders of Transfer Restricted
Securities for such Registration Default.
4. REGISTRATION PROCEDURES.
(a) In connection with the Shelf Registration Statement, the Issuer
shall comply with all the provisions of Section 4(b) hereof and shall use
commercially reasonable efforts to effect such registration to permit the sale
of the Transfer Restricted Securities being sold in accordance with the intended
method or methods of distribution thereof, and pursuant thereto, shall as
expeditiously as possible prepare and file with the Commission a Shelf
Registration Statement relating to the registration on any appropriate form
under the Securities Act.
6
(b) In connection with the Shelf Registration Statement and any
Prospectus required by this Agreement to permit the sale or resale of Transfer
Restricted Securities, the Issuer shall:
(i) Subject to any notice by the Issuer in accordance with
this Section 4(b) of the existence of any fact or event of the kind
described in Section 4(b)(iii)(D), use commercially reasonable
efforts to keep the Shelf Registration Statement continuously
effective during the Effectiveness Period; upon the occurrence of
any event that would cause the Shelf Registration Statement or the
Prospectus contained therein (A) to contain a material misstatement
or omission or (B) not be effective and usable for resale of
Transfer Restricted Securities during the Effectiveness Period, the
Issuer shall file promptly an appropriate amendment to the Shelf
Registration Statement, a supplement to the Prospectus or a report
filed with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act, in the case of clause (A), correcting any
such misstatement or omission, and, in the case of either clause (A)
or (B), use commercially reasonable efforts to cause such amendment
to be declared effective and the Shelf Registration Statement and
the related Prospectus to become usable for their intended purposes
as soon as practicable thereafter. Notwithstanding the foregoing,
the Issuer may suspend the effectiveness of the Shelf Registration
Statement by written notice to the Holders for a period not to
exceed an aggregate of 45 days in any 90-day period (each such
period, a "SUSPENSION PERIOD") and not to exceed an aggregate of 90
days in any 360-day period if:
(x) an event occurs and is continuing as a result of
which the Shelf Registration Statement would, in the Issuer's
reasonable judgment, 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
(y) the Issuer reasonably determines that the disclosure
of such event at such time would have a material adverse
effect on the business of the Issuer (and its subsidiaries, if
any, taken as a whole);
provided that in the event the disclosure relates to a previously
undisclosed proposed or pending material business transaction, the
disclosure of which would impede the Issuer's ability to consummate
such transaction, the Issuer may extend a Suspension Period from 45
days to 60 days in any 90-day period.
(ii) Prepare and file with the Commission such amendments and
post-effective amendments to the Shelf Registration Statement as may
be necessary to keep the Shelf Registration Statement effective
during the Effectiveness Period; cause the Prospectus to be
supplemented by any required Prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 under the Securities
Act, and to comply fully with the applicable provisions of Rules 424
and 430A under the Securities Act in a timely manner; and comply
with the provisions of the Securities Act with respect to the
disposition of all securities covered by the Shelf
7
Registration Statement during the applicable period in accordance
with the intended method or methods of distribution by the sellers
thereof set forth in the Shelf Registration Statement or supplement
to the Prospectus; provided, however, that in no event will such
method(s) of distribution take the form of an underwritten offering
without the prior written agreement of the Issuer.
(iii) Advise the underwriter(s), if any, and selling Holders
promptly (but in any event within five Business Days) and, if
requested by such Persons, to confirm such advice in writing:
(A) when the Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to
the Shelf Registration Statement or any post-effective
amendment thereto, when the same has become effective,
(B) of any request by the Commission for amendments to
the Shelf Registration Statement or amendments or supplements
to the Prospectus or for additional information relating
thereto,
(C) of the issuance by the Commission of any stop order
suspending the effectiveness of the Shelf Registration
Statement under the Securities Act or of the suspension by any
state securities commission of the qualification of the
Transfer Restricted Securities for offering or sale in any
jurisdiction, or the initiation of any proceeding for any of
the preceding purposes, or
(D) of the existence of any fact or the happening of any
event, during the Effectiveness Period, that makes any
statement of a material fact made in the Shelf Registration
Statement, the Prospectus, any amendment or supplement
thereto, or any document incorporated by reference therein
untrue, or that requires the making of any additions to or
changes in the Shelf Registration Statement or the Prospectus
in order to make the statements therein not misleading.
If at any time the Commission shall issue any stop order suspending
the effectiveness of the Shelf Registration Statement, or any state
securities commission or other regulatory authority shall issue an
order suspending the qualification or exemption from qualification
of the Transfer Restricted Securities under state securities or Blue
Sky laws, the Issuer shall use its commercially reasonable efforts
to obtain the withdrawal or lifting of such order at the earliest
possible time and will provide to the Initial Purchaser and each
Holder who is named in the Shelf Registration Statement prompt
notice of the withdrawal of any such order.
(iv) Furnish to one counsel for the selling Holders and each
of the underwriter(s), if any, before filing with the Commission, a
copy of the Shelf Registration Statement and copies of any
Prospectus included therein or any
8
amendments or supplements to the Shelf Registration Statement or
Prospectus (other than documents incorporated by reference after the
initial filing of the Shelf Registration Statement), which documents
will be subject to the review of such holders and underwriter(s), if
any, for a period of at least five Business Days but no more than
seven Business Days (in the case of the Shelf Registration Statement
and Prospectus) and at least two Business Days but no more than four
Business Days (in the case of any amendment or supplement thereto),
and the Issuer will not file the Shelf Registration Statement or
Prospectus or any amendment or supplement to the Shelf Registration
Statement or Prospectus (other than documents incorporated by
reference) to which a selling Holder of Transfer Restricted
Securities covered by the Shelf Registration Statement or the
underwriter(s), if any, shall reasonably object prior to the filing
thereof.
(v) In connection with an Underwritten Offering of the
Transfer Restricted Securities pursuant to the Shelf Registration
Statement, make available at reasonable times for inspection by one
or more representatives of the selling Holders, designated in
writing by a Majority of Holders whose Transfer Restricted
Securities are included in the Shelf Registration Statement, any
underwriter participating in any distribution pursuant to the Shelf
Registration Statement, and any attorney or accountant retained by
such selling Holders or any of the underwriter(s), all financial and
other records, pertinent corporate documents and properties of the
Issuer as shall be reasonably necessary to enable them to exercise
any applicable due diligence responsibilities, and cause the
Issuer's officers, directors, managers and employees to supply all
information reasonably requested by any such representative or
representatives of the selling Holders, underwriter, attorney or
accountant in connection with the Shelf Registration Statement after
the filing thereof and before its effectiveness, provided, however,
that any information designated by the Issuer as confidential at the
time of delivery of such information shall be kept confidential by
the recipient thereof and shall be subject, upon request of the
Issuer, to the execution by such persons of a confidentiality
agreement in a form that is reasonable in the context of a
registered public offering.
(vi) If requested by any selling Holders or the
underwriter(s), if any, promptly incorporate in the Shelf
Registration Statement or Prospectus, pursuant to a supplement or
post-effective amendment if necessary, such information as such
selling Holders and underwriter(s), if any, may reasonably request
to have included therein, including, without limitation: (1)
information relating to the "Plan of Distribution" of the Transfer
Restricted Securities, (2) information with respect to the principal
amount of Notes or number of shares of Common Stock being sold to
such underwriter(s), (3) the purchase price being paid therefor and
(4) any other terms of the offering of the Transfer Restricted
Securities to be sold in such offering; and make all required
filings of such Prospectus supplement or post-effective amendment as
soon as reasonably practicable after the Issuer is notified of the
matters to be incorporated in such Prospectus supplement or
post-effective amendment.
9
(vii) Furnish to each selling Holder and each of the
underwriter(s), if any, upon their request, without charge, at least
one copy of the Shelf Registration Statement, as first filed with
the Commission, and of each amendment thereto (and any documents
incorporated by reference therein or exhibits thereto (or exhibits
incorporated in such exhibits by reference) as such Person may
request).
(viii) Deliver to each selling Holder and each of the
underwriter(s), if any, without charge, as many copies of the
Prospectus (including each preliminary prospectus) and any amendment
or supplement thereto as such Persons reasonably may request;
subject to any notice by the Issuer in accordance with this Section
4(b) of the existence of any fact or event of the kind described in
Section 4(b)(iii) (D), the Issuer hereby consents to the use (in
accordance with applicable law) of the Prospectus and any amendment
or supplement thereto by each of the selling Holders and each of the
underwriter(s), if any, in connection with the offering and the sale
of the Transfer Restricted Securities covered by the Prospectus or
any amendment or supplement thereto.
(ix) The Issuer shall:
(A) upon request, furnish to each selling Holder and each
underwriter, if any, in such substance and scope as they may
reasonably request and as are customarily made by issuers to
underwriters in primary underwritten offerings for selling security
holders, upon the date of closing of any sale of Transfer Restricted
Securities in an Underwritten Registration:
(1) a certificate, dated the date of such closing,
signed by the Chief Financial Officer of the Issuer covering
such matters as are customarily covered in closing
certificates delivered to underwriters in connection with
underwritten offerings of securities;
(2) opinions, each dated the date of such closing, of
counsel to the Issuer covering such of the matters as are
customarily covered in legal opinions to underwriters in
connection with underwritten offerings of securities; and
(3) customary comfort letters, dated the date of such
closing, from the Issuer's independent accountants (and from
any other accountants whose report is contained or
incorporated by reference in the Shelf Registration Statement)
in the customary form and covering matters of the type
customarily covered in comfort letters to underwriters in
connection with underwritten offerings of securities;
(B) set forth in full in the underwriting agreement, if any,
indemnification provisions and procedures which provide rights no
less protective than those set forth in Section 6 hereof with
respect to all parties to be indemnified; and
10
(C) deliver such other documents and certificates as may be
reasonably requested by such parties to evidence compliance with
clause (A) above and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the
selling Holders pursuant to this clause (ix).
(x) Before any public offering of Transfer Restricted
Securities, cooperate with the selling Holders, the underwriter(s),
if any, and their respective counsel in connection with the
registration and qualification of the Transfer Restricted Securities
under the securities or Blue Sky laws of such jurisdictions in the
United States as the selling Holders or underwriter(s), if any, may
reasonably request and do any and all other acts or things necessary
or advisable to enable the disposition in such jurisdictions of the
Transfer Restricted Securities covered by the Shelf Registration
Statement; provided, however, that the Issuer shall not be required
(A) to register or qualify as a foreign corporation or a dealer of
securities where it is not now so qualified or to take any action
that would subject it to the service of process in any jurisdiction
where it is not now so subject or (B) to subject itself to taxation
in any such jurisdiction if it is not now so subject.
(xi) Cooperate with the selling Holders and the
underwriter(s), if any, to facilitate the timely preparation and
delivery of certificates representing Transfer Restricted Securities
to be sold and not bearing any restrictive legends (unless required
by applicable securities laws); and enable such Transfer Restricted
Securities to be in such denominations and registered in such names
as the Holders or the underwriter(s), if any, may request at least
two Business Days before any sale of Transfer Restricted Securities
made by such underwriter(s).
(xii) Use commercially reasonable efforts to cause the
Transfer Restricted Securities covered by the Shelf Registration
Statement to be registered with or approved by such other U.S.
governmental agencies or authorities as may be necessary to enable
the seller or sellers thereof or the underwriter(s), if any, to
consummate the disposition of such Transfer Restricted Securities.
(xiii) Subject to Section 4(b)(i) hereof, if any fact or event
contemplated by Section 4(b)(iii)(D) hereof shall exist or have
occurred, use commercially reasonable efforts to prepare a
supplement or post-effective amendment to the Shelf Registration
Statement or related Prospectus or any document incorporated therein
by reference or file any other required document so that, as
thereafter delivered to the purchasers of Transfer Restricted
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 in which they were made, not misleading.
(xiv) Provide CUSIP numbers for all Transfer Restricted
Securities not later than the effective date of the Shelf
Registration Statement and provide the Trustee under the Indenture
with certificates for the Notes that are in a form eligible for
deposit with The Depository Trust Company.
11
(xv) Cooperate and assist in any filings required to be made
with the NASD and in the performance of any due diligence
investigation by any underwriter that is required to be retained in
accordance with the rules and regulations of the NASD.
(xvi) Otherwise use its reasonable best efforts to comply with
all applicable rules and regulations of the Commission and all
reporting requirements under the Exchange Act.
(xvii) Cause the Indenture to be qualified under the TIA not
later than the effective date of the Shelf Registration Statement
required by this Agreement, and, in connection therewith, cooperate
with the Trustee and the holders of Notes 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 TIA; and execute and
use commercially reasonable efforts to cause the Trustee thereunder
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.
(xviii) Cause all Transfer Restricted Securities covered by
the Shelf Registration Statement to be listed or quoted, as the case
may be, on each securities exchange or automated quotation system on
which similar securities issued by the Issuer are then listed or
quoted.
(xix) Provide to each Holder upon written request each
document filed with the Commission pursuant to the requirements of
Section 13 and Section 15 of the Exchange Act after the effective
date of the Shelf Registration Statement.
(xx) If requested by the underwriters, prepare and present to
potential investors customary "road show" or marketing materials in
a manner consistent with other new issuances of other securities
similar to the Transfer Restricted Securities.
(c) Each Holder agrees by acquisition of a Transfer Restricted
Security that, upon receipt of any notice (a "SUSPENSION NOTICE") from the
Issuer of the existence of any fact of the kind described in Section
4(b)(iii)(D) hereof, such Holder will, and will use its reasonable best efforts
to cause any underwriter(s) in an Underwritten Offering to, forthwith
discontinue disposition of Transfer Restricted Securities pursuant to the Shelf
Registration Statement until:
(i) such Holder has received copies of the supplemented or
amended Prospectus contemplated by Section 4(b)(xiii) hereof; or
(ii) such Holder is advised in writing by the Issuer that the
use of the Prospectus may be resumed, and has received copies of any
additional or supplemental filings that are incorporated by
reference in the Prospectus.
If so directed by the Issuer, each Holder will deliver to the Issuer (at the
Issuer's expense) all copies, other than permanent file copies then in such
Holder's possession, of the Prospectus
12
covering such Transfer Restricted Securities that was current at the time of
receipt of such notice of suspension.
(d) Upon the effectiveness of the Shelf Registration Statement, each
Holder shall notify the Issuer at least three Business Days prior to any
intended distribution of Transfer Restricted Securities pursuant to the Shelf
Registration Statement (a "SALE NOTICE"), which notice shall be effective for
five Business Days. Each Holder of Transfer Restricted Securities, by accepting
the same, agrees to hold any communication by the Issuer in response to a Sale
Notice in confidence.
5. REGISTRATION EXPENSES.
(a) All expenses incident to the Issuer's performance of or
compliance with this Agreement shall be borne by the Issuer regardless of
whether a Shelf Registration Statement becomes effective, including, without
limitation:
(i) all registration and filing fees and expenses (including
filings made by the Initial Purchaser or any Holders with the NASD);
(ii) all fees and expenses of compliance with federal
securities and state Blue Sky or securities laws;
(iii) all expenses of printing (including printing of
Prospectuses and certificates for the Common Stock to be issued upon
conversion of the Notes) and the Issuer's expenses for messenger and
delivery services and telephone;
(iv) all fees and disbursements of counsel to the Issuer and,
subject to Section 5(b) below, the Holders of Transfer Restricted
Securities;
(v) all application and filing fees in connection with listing
(or authorizing for quotation) the Common Stock on a national
securities exchange or automated quotation system pursuant to the
requirements hereof; and
(vi) all fees and disbursements of independent certified
public accountants of the Issuer (including the expenses of any
special audit and comfort letters required by or incident to such
performance).
The Issuer shall bear its internal expenses (including, without
limitation, all salaries and expenses of its officers and employees performing
legal, accounting or other duties), the expenses of any annual audit and the
fees and expenses of any Person, including special experts, retained by the
Issuer.
(b) In connection with the Shelf Registration Statement required by
this Agreement, including any amendment or supplement thereto, and any other
documents delivered to any Holders, the Issuer shall reimburse the Initial
Purchaser and the Holders of Transfer Restricted Securities being registered
pursuant to the Shelf Registration Statement, as applicable, for the reasonable
fees and disbursements of not more than one counsel as may be chosen by a
Majority of Holders for whose benefit the Shelf Registration Statement is being
prepared.
13
The Company shall not be required to pay any underwriting discount, commission
or similar fee related to the sale of any securities.
6. INDEMNIFICATION AND CONTRIBUTION.
(a) The Issuer shall indemnify and hold harmless each Holder, such
Holder's officers, directors, partners and employees and each person, if any,
who controls such Holder within the meaning of the Securities Act (each, an
"INDEMNIFIED HOLDER"), from and against any loss, claim, damage or liability,
joint or several, or any action in respect thereof (including, but not limited
to, any loss, claim, damage, liability or action relating to resales of the
Transfer Restricted Securities), to which such Indemnified Holder may become
subject, insofar as any such loss, claim, damage, liability or action arises out
of, or is based upon (i) any untrue statement or alleged untrue statement of a
material fact contained in the Shelf Registration Statement or Prospectus or any
amendment or supplement thereto or (ii) the omission or alleged omission to
state therein any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, and shall reimburse each Indemnified Holder promptly
upon demand for any legal or other expenses reasonably incurred by such
Indemnified Holder in connection with investigating or defending or preparing to
defend against any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that the Issuer shall not be liable in
any such case to the extent that any such loss, claim, damage, liability or
action 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 amendment or supplement thereto in reliance upon and
in conformity with written information furnished to the Issuer by or on behalf
of such Holder; provided, further, that the Issuer shall not be liable for any
loss, liability, claim, damage or expense to the extent that it arises from (1)
a sale of Transfer Restricted Securities occurring during a Suspension Period,
provided that such Holder shall have received a Suspension Notice with respect
to such Suspension Period prior to such sale, (2) an untrue statement or
omission or alleged untrue statement or omission of a material fact contained in
a Prospectus, if (w) the Issuer had notified such Holder of such untrue
statement or omission or alleged untrue statement or omission prior to the
Holder's first use of the Prospectus, (x) the Holder failed to deliver, at or
prior to the written confirmation of sale, a Prospectus that was amended or
supplemented, (y) such Prospectus, as amended or supplemented, would have
corrected the untrue statement or omission or alleged untrue statement or
omission and (z) the Prospectus, as amended or supplemented, had been delivered
to such Holder prior to the time of the Holder's first use of the Prospectus, or
(3) the failure by the Holder to deliver to any purchaser of its Transfer
Restricted Securities the Prospectus and any supplement or amendment thereto in
the form provided to such Holder by the Issuer if such Holder is required to so
deliver pursuant to the prospectus delivery requirements of the Securities Act.
The foregoing indemnity agreement is in addition to any liability which the
Issuer may otherwise have to any Indemnified Holder.
(b) Each Holder, severally and not jointly, shall indemnify and hold
harmless the Issuer, its officers, directors and employees and each person, if
any, who controls the Issuer within the meaning of the Securities Act, from and
against any loss, claim, damage or liability, joint or several, or any action in
respect thereof, to which the Issuer or any such officer, director, employee or
controlling person may become subject, insofar as any such loss, claim, damage
or liability or action arises out of, or is based upon (i) any untrue statement
or alleged untrue
14
statement of any material fact contained in the Shelf Registration Statement or
Prospectus or any amendment or supplement thereto or (ii) the omission or the
alleged omission to state therein 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, but in each case only
to the extent that such untrue statement or alleged untrue statement or omission
or alleged omission was made in reliance upon and in conformity with written
information furnished to the Issuer by or on behalf of such Holder (or its
related Indemnified Holder) specifically for use therein, and shall reimburse
the Issuer and any such officer, director, employee or controlling person
promptly upon demand for any legal or other expenses reasonably incurred by the
Issuer or any such officer, director, employee or controlling person in
connection with investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action as such expenses are incurred. The
foregoing indemnity agreement is in addition to any liability which any Holder
may otherwise have to the Issuer and any such officer, employee or controlling
person.
(c) Promptly after receipt by an indemnified party under this
Section 6 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 6, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 6 except to the extent it has
been materially prejudiced by such failure and, provided, further, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section 6.
If any such claim or action shall be brought against an indemnified party, and
it shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly with
any other similarly notified indemnifying party, to assume the defense thereof
with counsel satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 6 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that a
Majority of Holders shall have the right to employ a single counsel to represent
jointly a Majority of Holders and their respective officers, directors,
partners, employees and controlling persons who may be subject to liability
arising out of any claim in respect of which indemnity may be sought by a
Majority of Holders against the Issuer under this Section 6, if a Majority of
Holders seeking indemnification shall have been advised by legal counsel that
there may be one or more legal defenses available to them and their respective
officers, employees and controlling persons that are different from or
additional to those available to the Issuer and its officers, directors,
employees and controlling persons, the fees and expenses of a single separate
counsel shall be paid by the Issuer. No indemnifying party shall:
(i) without the prior written consent of the indemnified parties
(which consent shall not be unreasonably withheld) settle or compromise or
consent to the entry of any judgment with respect to any pending or
threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not
the indemnified parties are actual or potential parties to such claim or
action) unless such settlement, compromise or consent includes an
unconditional release of each
15
indemnified party from all liability arising out of such claim, action,
suit or proceeding, or
(ii) be liable for any settlement of any such action effected
without its written consent (which consent shall not be unreasonably
withheld), but if settled with its written consent or if there be a final
judgment for the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party from and
against any loss or liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 6 shall for
any reason be unavailable or insufficient to hold harmless an indemnified party
under Section 6(a) or 6(b) in respect of any loss, claim, damage or liability
(or action in respect thereof) referred to therein, each indemnifying party
shall, in lieu of indemnifying such indemnified party, contribute to the amount
paid or payable by such indemnified party as a result of such loss, claim,
damage or liability (or action in respect thereof):
(i) in such proportion as is appropriate to reflect the relative
benefits received by the Issuer from the offering and sale of the Transfer
Restricted Securities on the one hand and a Holder with respect to the
sale by such Holder of the Transfer Restricted Securities on the other, or
(ii) if the allocation provided by clause (6)(d)(i) is not permitted
by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause 6(d)(i) but also the
relative fault of the Issuer on the one hand and the Holders on the other
in connection with the statements or omissions or alleged statements or
alleged omissions that resulted in such loss, claim, damage or liability
(or action in respect thereof), as well as any other relevant equitable
considerations.
The relative benefits received by the Issuer on the one hand and a Holder on the
other with respect to such offering and such sale shall be deemed to be in the
same proportion as the total net proceeds from the offering of the Notes
purchased under the Purchase Agreement (net of discounts and commissions but
before deducting expenses) received by the Issuer on the one hand, bear to the
total proceeds received by such Holder with respect to its sale of Transfer
Restricted Securities on the other. The relative fault of the parties shall be
determined by reference to 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 Issuer on the one hand or the Holders on
the other, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Issuer and each Holder agree that it would not be just and equitable if the
amount of contribution pursuant to this Section 6(d) were determined by pro rata
allocation or by any other method of allocation that does not take into account
the equitable considerations referred to in the first sentence of this paragraph
(d). The amount paid or payable by an indemnified party as a result of the loss,
claim, damage or liability, or action in respect thereof, referred to above in
this Section 6 shall be deemed to include, for purposes of this Section 6, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending or preparing to defend any such
action or claim. Notwithstanding the provisions of this Section 6, no Holder
shall be required to contribute any amount in excess of the amount by which the
total price at
16
which the Transfer Restricted Securities purchased by it were resold exceeds the
amount of any damages which such Holder has otherwise been required to pay by
reason of any untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The Holders'
obligations to contribute as provided in this Section 6(d) are several and not
joint.
7. RULE 144A. In the event the Issuer is not subject to Section 13
or 15(d) of the Exchange Act, the Issuer hereby agrees with each Holder, for so
long as any Transfer Restricted Securities remain outstanding, to make available
to any Holder or beneficial owner of Transfer Restricted Securities in
connection with any sale thereof and any prospective purchaser of such Transfer
Restricted Securities from such Holder or beneficial owner, the information
required by Rule 144A(d)(4) under the Securities Act in order to permit resales
of such Transfer Restricted Securities pursuant to Rule 144A.
8. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. No Holder may
participate in any Underwritten Registration hereunder unless such Holder:
(i) agrees to sell such Holder's Transfer Restricted Securities on
the basis provided in any underwriting arrangements approved by the
Persons entitled hereunder to approve such arrangements; and
(ii) completes and executes all reasonable questionnaires, powers of
attorney, indemnities, underwriting agreements, lock-up letters and other
documents required under the terms of such underwriting arrangements.
9. SELECTION OF UNDERWRITERS. The Holders of Transfer Restricted
Securities covered by the Shelf Registration Statement who desire to do so may
sell such Transfer Restricted Securities in an Underwritten Offering if approved
by the Issuer, as provided in Section 4(b)(ii). In any such Underwritten
Offering, the investment banker or investment bankers and manager or managers
that will administer the offering will be selected by a Majority of Holders
whose Transfer Restricted Securities are included in such offering; provided,
that such investment bankers and managers must be reasonably satisfactory to the
Issuer.
10. MISCELLANEOUS.
(a) REMEDIES. The Issuer acknowledges and agrees that any failure by
the Issuer to comply with its obligations under Section 2 hereof may result in
material irreparable injury to the Initial Purchaser or 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,
the Initial Purchaser or any Holder may obtain such relief as may be required to
specifically enforce the Issuer's obligations under Section 2 hereof. The Issuer
further agrees to waive the defense in any action for specific performance that
a remedy at law would be adequate.
(b) ADJUSTMENTS AFFECTING TRANSFER RESTRICTED SECURITIES. The Issuer
shall not take any action with the primary purpose of adversely affecting the
ability of the Holders of
17
the Transfer Restricted Securities as a class to include such Transfer
Restricted Securities in a registration undertaken pursuant to this Agreement.
(c) NO INCONSISTENT AGREEMENTS. The Issuer 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. In addition, the Issuer shall
not grant to any of its security holders (other than the Holders of Transfer
Restricted Securities in such capacity) the right to include any of its
securities in the Shelf Registration Statement provided for in this Agreement
other than the Transfer Restricted Securities. Except as disclosed in the
Offering Memorandum, the Issuer has not previously entered into any agreement
(which has not expired or been terminated) granting any registration rights with
respect to its securities to any Person which rights conflict with the
provisions hereof.
(d) AMENDMENTS AND WAIVERS. This Agreement may not be amended,
modified or supplemented, and waivers or consents to or departures from the
provisions hereof may not be given, unless the Issuer has obtained the written
consent of a Majority of Holders or such greater percentage of the Holders as
required by the Indenture.
(e) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, facsimile
transmission, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of the
registrar under the Indenture or the transfer agent of the Common Stock,
as the case may be; and
(ii) if to the Issuer:
Mindspeed Technologies, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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
18
the mail, postage prepaid, if mailed; when answered back, if telexed; when
receipt acknowledged, if transmitted by facsimile; and on the next Business Day,
if timely delivered to an air courier guaranteeing overnight delivery.
(f) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including without limitation and without the need for an express
assignment, subsequent Holders of Transfer Restricted Securities; provided,
however, that (i) this Agreement shall not inure to the benefit of or be binding
upon a successor or assign of a Holder unless and to the extent such successor
or assign acquired Transfer Restricted Securities from such Holder and (ii)
nothing contained herein shall be deemed to permit any assignment, transfer or
other disposition of Transfer Restricted Securities in violation of the terms of
the Purchase Agreement or the Indenture. If any transferee of any Holder shall
acquire Transfer Restricted Securities, in any manner, whether by operation of
law or otherwise, such Transfer Restricted Securities shall be held subject to
all of the terms of this Agreement, and by taking and holding such Transfer
Restricted Securities such person shall be conclusively deemed to have agreed to
be bound by and to perform all of the terms and provisions of this Agreement.
(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) SECURITIES HELD BY THE ISSUER OR ITS AFFILIATES. Whenever the
consent or approval of Holders of a specified percentage of Transfer Restricted
Securities is required hereunder, Transfer Restricted Securities held by the
Issuer or its "affiliates" (as such term is defined in Rule 405 under the
Securities Act) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
(i) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(j) GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the law of the State of New York.
(k) 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.
(l) ENTIRE AGREEMENT. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted by the Issuer with respect to
the Transfer Restricted Securities. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
19
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
MINDSPEED TECHNOLOGIES, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
▇▇▇▇▇▇ BROTHERS INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇
------------------------------
Authorized Representative