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EXHIBIT 4.4
MRV COMMUNICATIONS, INC.
5% Convertible Subordinated Notes Due 2003
REGISTRATION RIGHTS AGREEMENT
June 26, 1998
PRUDENTIAL SECURITIES INCORPORATED
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
c/o Prudential Securities Incorporated
One ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
MRV Communications, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell to the Purchasers (as defined herein), upon the terms
set forth in a purchase agreement dated June 23, 1998 (the "Purchase Agreement")
among the Purchasers and the Company, its 5% Convertible Subordinated Notes Due
2003 (the "Securities"). As an inducement to the Purchasers to enter into the
Purchase Agreement and in satisfaction of a condition to the obligations of the
Purchasers thereunder, the Company agrees with the Purchasers, (i) for the
benefit of the Purchasers and (ii) for the benefit of the holders (as defined
herein) from time to time of the Securities and the Common Stock, par value
$.0034 per share (the "Common Stock"), of the Company issuable upon conversion
of the Securities (collectively, the "Registrable Securities"), including the
Purchasers, as follows:
SECTION 1. Definitions.
(a) Capitalized terms used herein without definition shall have
their respective meanings set forth in or pursuant to the Purchase Agreement or
the Offering Circular, dated June 23, 1998, in respect of the Securities. As
used in this Agreement, the following capitalized defined terms shall have the
following meanings:
"Act" or "Securities Act" means the United States Securities Act of
1933, as amended.
"Affiliate" of any specified person means any other person which,
directly or indirectly, is in control of, is controlled by, or is under common
control with such specified person. For purposes of this definition, control of
a person means the power, direct or indirect, to direct or cause the direction
of the management and policies of such person whether by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Commission" means the United States Securities and Exchange Commission.
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"Common Stock" means the Common Stock, par value $.0034 per share, of
the Company.
"DTC" means The Depository Trust Company.
"Effectiveness Period" has the meaning set forth in Section 2(b) hereof.
"Effective Time" means the date on which the Commission declares the
Shelf Registration Statement effective or on which the Shelf Registration
Statement otherwise becomes effective.
"Electing Holder" has the meaning set forth in Section 3(a)(3) hereof.
"Exchange Act" means the United States Securities and Exchange Act of
1934, as amended.
The term "holder" means, when used with respect to any Security, the
holder (as defined in the Indenture) and, with respect to any Common Stock, the
record holder of such Common Stock.
"Indenture" means the Indenture, dated as of June 26, 1998, between the
Company and American Stock Transfer & Trust Company, as amended and supplemented
from time to time in accordance with its terms.
"Managing Underwriters" means the investment banker or investment
bankers and manager or managers that shall administer an underwritten offering,
if any, as set forth in Section 6 hereof.
"NASD" means the National Association of Securities Dealers, Inc.
"NASD Rules" means the Rules of the NASD, as amended from time to time.
"Notice and Questionnaire" means a Notice of Registration Statement and
Selling Securityholder Questionnaire substantially in the form of Exhibit A
hereto.
"Person" shall mean an individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political subdivision
thereof.
"Prospectus" means the prospectus included in any Shelf Registration
Statement (including, without limitation, any preliminary prospectus, any final
prospectus and any prospectus that discloses information previously omitted from
a prospectus filed as part of an effective registration statement in reliance
upon Rule 430A under the Act), as amended or supplemented by any prospectus
supplement, with respect to the terms of the offering of any portion of the
Registrable Securities covered by the Shelf Registration Statement and by all
other amendments and supplements to such prospectus, including all material
incorporated by reference in such prospectus and all documents filed after the
date of such prospectus by the Company under the Exchange Act and incorporated
by reference therein.
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"Purchasers" means collectively, Prudential Securities Incorporated and
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
"Purchase Agreement" means the Purchase Agreement, dated June 23, 1998,
among the Purchasers and the Company.
"Registrable Securities" means all or any portion of the Securities
issued from time to time under the Indenture in registered form and the shares
of Common Stock issuable upon conversion of such Securities, including any
Securities initially issued in bearer form and constituting the unsold allotment
of a distributor (within the meaning of Regulation S under the Securities Act)
of such Securities and later exchanged for Securities in registered form;
provided, however, that a security ceases to be a Registrable Security when it
is no longer a Restricted Security.
"Restricted Security" means any Security or share of Common Stock
issuable upon conversion thereof except any such Security or share of Common
Stock which (i) has been effectively registered under the Securities Act and
sold in a manner contemplated by the Shelf Registration Statement, (ii) has been
transferred in compliance with Rule 144 under the Securities Act (or any
successor provision thereto) or is transferable pursuant to paragraph (k) of
such Rule 144 (or any successor provision thereto), (iii) has been sold in
compliance with Regulation S under the Securities Act (or any successor thereto)
and does not constitute the unsold allotment of a distributor within the meaning
of Regulation S under the Securities Act, or (iv) has otherwise been transferred
and a new Security or share of Common Stock not subject to transfer restrictions
under the Securities Act has been delivered by or on behalf of the Company in
accordance with Section 3.5 of the Indenture.
"Shelf Registration" means a registration effected pursuant to Section 2
hereof.
"Shelf Registration Statement" means a shelf registration statement of
the Company pursuant to the provisions of Section 2 hereof filed with the
Commission which covers some or all of the Registrable Securities, as
applicable, on an appropriate form under Rule 415 under the Act, or any similar
rule that may be adopted by the Commission, amendments and supplements to such
registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Suspension Event" shall have the meaning set forth in Section 3(j).
"Trust Indenture Act" means the Trust Indenture Act of 1939, or any
successor thereto, and the rules, regulations and forms promulgated thereunder,
as the same shall be amended from time to time.
"underwriter" means any underwriter of Registrable Securities in
connection with an offering thereof under a Shelf Registration Statement.
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(b) Wherever there is a reference in this Agreement to a
percentage of the "principal amount" of Registrable Securities or to a
percentage of Registrable Securities, Common Stock shall be treated as
representing the principal amount of Securities which was surrendered for
conversion or exchange in order to receive such number of shares of Common
Stock.
SECTION 2. Shelf Registration.
(a) The Company shall, within 90 calendar days following the Firm
Closing Date (as defined in the Purchase Agreement ), file with the Commission a
Shelf Registration Statement relating to the offer and sale of the Registrable
Securities by the holders from time to time in accordance with the methods of
distribution elected by such holders and set forth in such Shelf Registration
Statement and, thereafter, shall use its best efforts to cause such Shelf
Registration Statement to be declared effective under the Act by the Commission
as promptly as practicable but no later than 180 calendar days after the Firm
Closing Date; provided, however, that no holder shall be entitled to have the
Registrable Securities held by it covered by such Shelf Registration unless such
holder is an Electing Holder.
(b) The Company shall use its best efforts:
(i) To keep the Shelf Registration Statement continuously
effective in order to permit the Prospectus forming part thereof to be
usable by holders for a period of two years from the Effective Time of
the Shelf Registration Statement or, if shorter, the period that will
terminate when there are no Registrable Securities outstanding (in
either case, such period being referred to herein as the "Effectiveness
Period");
(ii) After the Effective Time of the Shelf Registration
Statement, promptly upon the request of any holder of Registrable
Securities that is not then an Electing Holder, to take any action
reasonably necessary to enable such holder to use the Prospectus forming
a part thereof for resales of Registrable Securities, including, without
limitation, any action necessary to identify such holder as a selling
securityholder in the Shelf Registration Statement; provided, however,
that nothing in this subparagraph shall relieve such holder of the
obligation to return a completed and signed Notice and Questionnaire to
the Company in accordance with Section 3(a)(2) hereof; and
(iii) If at any time the Securities, pursuant to Article XIII of
the Indenture, are convertible into securities other than Common Stock,
to cause such securities to be included in the Shelf Registration
Statement no later than the date on which the Securities may then be
convertible into such securities.
The Company shall be deemed not to have used its best efforts (within the
meaning of Section 11.12 of the Indenture) to keep the Shelf Registration
Statement effective during the Effectiveness Period if the Company voluntarily
takes any action that would result in any Electing Holders not being able
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to offer and sell any such Registrable Securities during such period unless such
(i) action is required by applicable law or (ii) a Suspension Event occurs and
the Company complies with Section 3(j).
SECTION 3. Registration Procedures.
In connection with any Shelf Registration Statement, the following
provisions shall apply:
(a) (i) Not less than 30 calendar days prior to the Effective
Time of the Shelf Registration Statement, the Company shall mail the
Notice and Questionnaire to the holders of Registrable Securities. No
holder shall be entitled to be named as a selling securityholder in the
Shelf Registration Statement as of the Effective Time, and no holder
shall be entitled to use the Prospectus forming a part thereof for
resales of Registrable Securities at any time, unless such holder has
returned a completed and signed Notice and Questionnaire to the Company
by the deadline for response set forth therein; provided, however,
holders of Registrable Securities shall have at least 28 calendar days
from the date on which the Notice and Questionnaire is first mailed to
such holders to return a completed and signed Notice and Questionnaire
to the Company.
(ii) After the Effective Time of the Shelf Registration
Statement, the Company shall, upon the request of any holder of
Registrable Securities that is not then an Electing Holder, promptly
send a Notice and Questionnaire to such holder. The Company shall not be
required to take any action to name such holder as a selling
securityholder in the Shelf Registration Statement or to enable such
holder to use the Prospectus forming a part thereof for resales of
Registrable Securities until such holder has returned a completed and
signed Notice and Questionnaire to the Company.
(iii) The term "Electing Holder" shall mean any holder of
Registrable Securities that has returned a completed and signed Notice
and Questionnaire to the Company in accordance with Section 3(a)(i) or
3(a)(ii) hereof.
(b) The Company shall furnish to each Electing Holder, prior to
the Effective Time, a copy of any Shelf Registration Statement initially filed
with the Commission, and shall furnish to such holders, prior to the filing
thereof with the Commission, copies of each amendment thereto and each amendment
or supplement, if any, to the Prospectus included therein and shall use its best
efforts to reflect in each such document, when so filed with the Commission,
such comments as the holders and their respective counsel reasonably may propose
(which comments shall be delivered to the Company within three Business Days
after receipt of any Shelf Registration Statement, each amendment thereto or any
amendment or supplement to the Prospectus).
(c) Subject to Section 3(j), the Company shall promptly take such
action as may be necessary so that (i) any Shelf Registration Statement and any
amendment thereto and any Prospectus forming part thereof and any amendment or
supplement thereto (and each report or other document incorporated therein by
reference in each case) complies in all material respects with the
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Securities Act and the Exchange Act and the respective rules and regulations
thereunder, (ii) any Shelf Registration Statement and any amendment thereto does
not, when it becomes effective, contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading and (iii) any Prospectus forming part
of any Shelf Registration Statement, and any amendment or supplement to such
Prospectus, does not at any time during the Effectiveness Period include an
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements, in the light of the circumstances under which
they were made, not misleading.
(d) The Company shall promptly advise each Electing Holder and
shall confirm such advice in writing if so requested by any such holder:
(i) when a Shelf Registration Statement and any amendment
thereto has been filed with the Commission and when the Shelf
Registration Statement or any post-effective amendment thereto has
become effective;
(ii) of any request by the Commission for amendments or
supplements to the Shelf Registration Statement or the Prospectus
included therein or for additional information;
(iii) the issuance by the Commission of any stop order
suspending effectiveness of the Shelf Registration Statement or the
initiation of any proceedings for such purpose;
(iv) the receipt by the Company of any notification with respect
to the suspension of the qualification of the securities included in the
Shelf Registration Statement for sale in any jurisdiction or the
initiation of any proceeding for such purpose; and
(v) the happening of any event or the existence of any state of
facts that requires the making of any changes in the Shelf Registration
Statement or the Prospectus so that, as of such date, the Shelf
Registration Statement and the Prospectus do not contain an untrue
statement of a material fact and do not omit to state a material fact
required to be stated therein or necessary to make the statements
therein (in the case of the Prospectus, in light of the circumstances
under which they were made) not misleading (which advice shall be
accompanied by an instruction to suspend the use of the Prospectus until
the requisite changes have been made).
(e) The Company shall use its best efforts to prevent the
issuance, and if issued to obtain the withdrawal, of any order suspending the
effectiveness of any Shelf Registration Statement at the earliest possible time.
(f) The Company shall furnish to each Electing Holder, without
charge, at least one copy of such Shelf Registration Statement and any
post-effective amendment thereto, including
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financial statements and schedules, and, if such holder so requests in writing,
all reports and exhibits (including those incorporated by reference).
(g) The Company shall, during the Effectiveness Period, deliver
to each Electing Holder, without charge, as many copies of the Prospectus
(including each preliminary Prospectus) included in such Shelf Registration
Statement and any amendment or supplement thereto as such holder may reasonably
request; and the Company consents (except during the continuance of any event
described in Section 3(d)(v)) to the use of the Prospectus or any amendment or
supplement thereto by each of the selling Electing Holders in connection with
the offering and sale of the Registrable Securities covered by the Prospectus or
any amendment or supplement thereto during the Effectiveness Period.
(h) Prior to any offering of Registrable Securities pursuant to
any Shelf Registration Statement, the Company shall (i) register or qualify or
cooperate with the Electing Holders and their respective counsel in connection
with the registration or qualification of such Registrable Securities for offer
and sale under the securities or blue sky laws of such jurisdictions within the
United States as any Electing Holder may reasonably request, (ii) keep such
registrations or qualifications in effect and comply with such laws so as to
permit the continuance of offers and sales in such jurisdictions for so long as
may be necessary to enable any Electing Holder or underwriter, if any, to
complete its distribution of Registrable Securities pursuant to the Shelf
Registration Statement and (iii) take any and all other actions necessary or
advisable to enable the offer and sale in such jurisdictions of the Registrable
Securities covered by such Shelf Registration Statement; provided, however, that
in no event shall the Company be obligated to (i) qualify as a foreign
corporation or as a dealer in securities in any jurisdiction where it would not
otherwise be required to so qualify but for this Section 3(h) or (ii) file any
general consent to service of process in any jurisdiction where it is not as of
the date hereof then so subject.
(i) Unless any Registrable Securities shall be in book-entry only
form, the Company shall cooperate with the Electing Holders to facilitate the
timely preparation and delivery of certificates representing Registrable
Securities to be sold pursuant to any Shelf Registration Statement which
certificates, if so required by any securities exchange upon which any
Registrable Securities are listed, shall be penned, lithographed or engraved, or
produced by any combination of such methods, on steel engraved borders, and
which certificates shall be free of any restrictive legends and in such
permitted denominations and registered in such names as holders may request in
connection with the sale of Registrable Securities pursuant to such Shelf
Registration Statement.
(j) Upon the occurrence of any event contemplated by Section
3(d)(v) above, the Company shall promptly prepare a post-effective amendment to
any Shelf Registration Statement or an amendment or supplement to the related
Prospectus or file any other required document so that, as thereafter delivered
to Purchasers of the Registrable Securities included therein, the Prospectus
will not include an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading. Notwithstanding the
foregoing, the Company may postpone, for a period not to exceed
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30 days, supplementing or amending the Shelf Registration Statement if (i) the
Company is in possession of material non-public information related to a
proposed financing, recapitalization, acquisition, business combination or other
material transaction and the Board of Directors of the Company determines (in
good faith in a written resolution) that disclosure of such information would
have a material adverse effect on the business or operations of the Company and
its subsidiaries and disclosure of such information is not otherwise required by
law and (ii) the Company delivers notice (which shall include a copy of the
resolution of the Board of Directors with respect to such determination) to the
Electing Holders and any placement agent or underwriter as contemplated by
Section 3(d)(v) to the effect that Electing Holders may not make offers or sales
under the Shelf Registration Statement (a "Suspension Event"); provided,
however, that the Company may deliver only two such notices within any 12-month
period. Promptly upon the earlier of (x) public disclosure of such material
non-public information, (y) the date on which such non-public information is no
longer material and (z) 30 days after the date notice is given by the Company
pursuant to clause (ii) above, the Company shall supplement or amend the Shelf
Registration Statement as required by the immediately preceding sentence and
give notice to the Electing Holders that offers and sales under the Shelf
Registration Statement may be resumed. If the Company notifies the Electing
Holders of the occurrence of any event contemplated by paragraph 3(d)(v) above,
each Electing Holder agrees, as a consequence of the inclusion of any of such
holder's Registrable Securities in the Shelf Registration Statement, to suspend
the use of the Prospectus until the requisite changes to the Prospectus have
been made.
(k) Not later than the Effective Time of any Shelf Registration
Statement hereunder, the Company shall obtain a CUSIP number for the Securities
registered under such Shelf Registration Statement.
(l) The Company shall use its best efforts to comply with all
applicable rules and regulations of the Commission and shall make generally
available to their securityholders or otherwise provide in accordance with
Section 11(a) of the Securities Act as soon as practicable, but in any event not
later than eighteen months after (i) the effective date of the applicable Shelf
Registration Statement, (ii) the effective date (as defined in Rule 158(c) under
the Securities Act of each post-effective amendment to the Shelf Registration
Statement, and (iii) the date of each filing by the Company with the Commission
of an Annual Report on Form 10-K that is incorporated by reference in the Shelf
Registration Statement, an earnings statement satisfying the provisions of
Section 11(a) of the Securities Act and the rules and regulations of the
Commission thereunder (including, at the option of the Company, Rule 158).
(m) Not later than the Effective Time of the Shelf Registration
Statement, the Company shall cause the Indenture and the Securities to be
qualified under the Trust Indenture Act in a timely manner and, in connection
with such qualification, the Company shall cooperate with the Trustee under the
Indenture and the Holders (as defined in the Indenture) to effect such changes
to the Indenture as may be required for such Indenture to be so qualified in
accordance with the terms of the Trust Indenture Act; and the Company shall
execute, and shall use all reasonable efforts to cause the Trustee to execute,
all documents that may be required to effect such changes and all other
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forms and documents required to be filed with the Commission to enable such
Indenture to be so qualified in a timely manner. In the event that any such
amendment or modification referred to in this Section 3(m) involves the
appointment of a new trustee under the Indenture, the Company shall appoint a
new trustee thereunder pursuant to the applicable provisions of the Indenture.
(n) The Company may require each holder of Registrable Securities
to be sold pursuant to any Shelf Registration Statement to furnish to the
Company such information regarding the holder and the distribution of such
Registrable Securities as may be required by applicable law or regulation for
inclusion in such Shelf Registration Statement and the Company may exclude from
such registration the Registrable Securities of any holder that fails to furnish
such information within a reasonable time after receiving such request.
(o) The Company shall, if requested, promptly include or
incorporate in a Prospectus supplement or post-effective amendment to a Shelf
Registration Statement, such information as the Managing Underwriters reasonably
agree should be included therein and to which the Company does not reasonably
object and shall make all required filings of such Prospectus supplement or
post-effective amendment as soon as practicable after they are notified of the
matters to be included or incorporated in such Prospectus supplement or
post-effective amendment.
(p) The Company shall enter into such customary agreements
(including underwriting agreements in customary form) and take all other
appropriate actions in order to expedite or facilitate the registration or the
disposition of the Registrable Securities, and in connection therewith, if an
underwriting agreement is entered into, cause the same to contain
indemnification provisions and procedures substantially identical to those set
forth in Section 5 (or such other provisions and procedures acceptable to the
Managing Underwriters, if any) with respect to all parties to be indemnified
pursuant to Section 5.
(q) The Company shall:
(i) make reasonably available for inspection by the Electing
Holders, any underwriter participating in any disposition pursuant to
such Shelf Registration Statement, and any attorney, accountant or other
agent retained by such holders or any such underwriter all relevant
financial and other records, pertinent corporate documents and
properties of the Company and its subsidiaries;
(ii) in connection with any underwritten offering conducted
pursuant to Section 6 hereof, cause the Company's officers, directors
and employees to supply all information reasonably requested by such
holders or any such underwriter, attorney, accountant or agent in
connection with any such Shelf Registration Statement, in each case, as
is customary for similar due diligence examinations; provided, however,
that any information that is designated in writing by the Company, in
good faith, as confidential at the time of delivery of such information
shall be kept confidential by such holders or any such underwriter,
attorney, accountant or agent, unless such disclosure is made in
connection with
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a court proceeding or required by law, or such information becomes
available to the public generally or through a third party without an
accompanying obligation of confidentiality; and provided further, that,
if the foregoing inspection and information gathering would otherwise
disrupt the Company's conduct of business, such inspection and
information gathering shall, to the greatest extent possible, be
coordinated on behalf of the Electing Holders and the other parties
entitled thereto by one counsel designated by and on behalf of such
Electing Holders and other parties;
(iii) in connection with any underwritten offering conducted
pursuant to Section 6 hereof, make such representations and warranties
to the Electing Holders registered thereunder and to the Managing
Underwriters, in form, substance and scope as are customarily made by
the Company to underwriters in primary underwritten offerings and
covering matters including, but not limited to, those set forth in the
Purchase Agreement;
(iv) in connection with any underwritten offering conducted
pursuant to Section 6 hereof, obtain opinions of counsel to the Company
and updates thereof (which counsel and opinions (in form, scope and
substance) shall be reasonably satisfactory to the Managing
Underwriters) addressed to each selling holder and the underwriters
covering such matters as are customarily covered in opinions requested
in primary underwritten offerings of equity and convertible debt
securities and such other matters as may be reasonably requested by such
holders and underwriters (it being agreed that the matters to be covered
by such opinion or written statement by such counsel delivered in
connection with such opinions shall include, without limitation, as of
the date of the opinion and as of the effective date of the Shelf
Registration Statement or most recent post-effective amendment thereto,
as the case may be, the absence from such Shelf Registration Statement
and the Prospectus included therein, as then amended or supplemented,
including the documents incorporated by reference therein, of an untrue
statement of a material fact or the omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading);
(v) in connection with any underwritten offering conducted
pursuant to Section 6 hereof, obtain "cold comfort" letters and updates
thereof from the independent public accountants of the Company (and, if
necessary, any other independent public accountants of any subsidiary of
the Company or of any business acquired by the Company for which
financial statements and financial data are, or are required to be,
included in the Shelf Registration Statement), addressed to each selling
holder and the underwriters in customary form and covering matters of
the type customarily covered in "cold comfort" letters in connection
with primary underwritten offerings;
(vi) in connection with any underwritten offering conducted
pursuant to Section 6 hereof, deliver such documents and certificates as
may be reasonably requested by any such holders participating in such
underwritten offering and the Managing Underwriters,
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including those to evidence compliance with Section 3(i) and with any
customary conditions contained in the underwriting agreement or other
agreement entered into by the Company.
The foregoing actions set forth in clauses (iii), (iv), (v) and (vi) of this
Section 3(q) shall be performed at each closing under any underwritten offering
to the extent required thereunder.
(r) The Company will use its best efforts to cause the Common
Stock issuable upon conversion of the Securities to be listed on the Nasdaq
National Market or other stock exchange or trading system on which the Common
Stock primarily trades on or prior to the Effective Time of any Shelf
Registration Statement hereunder.
(s) In the event that any broker-dealer registered under the
Exchange Act shall be an "affiliate " (as defined in Rule 2720(b)(1) of the NASD
Rules (or any successor provision thereto)) of the Company or has a "conflict of
interest" ( as defined in Rule 2720(b)(7) of the NASD Rules (or any successor
provision thereto)) and such broker-dealer shall underwrite any Registrable
Securities or participate as a member of an underwriting syndicate or selling
group or assist in the distribution thereof, whether as a holder of such
Registrable Securities or as an underwriter, a placement or sales agent or a
broker or dealer in respect thereof, or otherwise, the Company shall assist such
broker-dealer in complying with the requirements of the NASD Rules, including,
without limitation, by (A) engaging a "qualified independent underwriter" (as
defined in Rule 2720(b)(15) of the NASD Rules (or any successor provision
thereto)) to participate in the preparation of the Shelf Registration Statement
relating to such Registrable Securities, to exercise usual standards of due
diligence in respect thereto, and to recommend the public offering price of such
Registrable Securities, (B) indemnifying any such qualified independent
underwriter to the extent of the indemnification of underwriters provided in
Section 5 hereof and (C) providing such information to such broker-dealer as may
be required in order for such broker-dealer to comply with the requirements of
the NASD Rules.
(t) The Company shall use its best efforts to take all other
steps necessary to effect the registration, offering and sale of the Registrable
Securities covered by the Shelf Registration Statement contemplated hereby.
SECTION 4. Registration Expenses.
The Company shall bear all fees and expenses incurred in connection with
the performance of its obligations under Sections 2, 3 and 6 hereof. In
addition, in the event of an underwritten offering of Registrable Securities
conducted pursuant to Section 6 hereof, or if in any other event the Company
requires that inspection and information gathering be coordinated by counsel for
the Electing Holders as provided in Section 3(q)(i) hereof, the Company shall
pay the fees and expenses of a single counsel selected by the Electing Holders
of not less than 25% of the Registrable Securities covered by the Shelf
Registration Statement to act as counsel therefor in connection therewith.
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SECTION 5. Indemnification and Contribution.
(a) Indemnification by the Company. Upon the registration of the
Registrable Securities pursuant to Section 2 hereof, the Company shall indemnify
and hold harmless each Electing Holder and each underwriter, selling agent or
other securities professional, if any, which facilitates the disposition of
Registrable Securities, and each of their respective officers and directors and
each person who controls such Electing Holder, underwriter, selling agent or
other securities professional within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act (each such person being sometimes referred
to as an "Indemnified Person") against any losses, claims, damages or
liabilities, joint or several, to which such Indemnified Person may become
subject under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Shelf Registration Statement under which such Registrable
Securities are to be registered under the Securities Act, or any Prospectus
contained therein or furnished by the Company to any Indemnified Person, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and the
Company hereby agrees to reimburse such Indemnified Person for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such action or claim as such expenses are incurred; provided,
however, that the Company shall not be liable to any such Indemnified Person in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in such Shelf Registration Statement or
Prospectus, or amendment or supplement, in reliance upon and in conformity with
written information furnished to the Company by such Indemnified Person
expressly for use therein.
(b) Indemnification by the Holders and any Agents and
Underwriters. Each Electing Holder agrees, as a consequence of, and as a
condition to, the inclusion of any of such holder's Registrable Securities in
such Shelf Registration Statement, and each underwriter, selling agent or other
securities professional, if any, which facilitates the disposition of
Registrable Securities shall agree (or the Electing Holder shall cause to
agree), as a consequence of facilitating such disposition of Registrable
Securities, severally and not jointly, to (i) indemnify and hold harmless the
Company, its directors, officers who sign any Shelf Registration Statement and
each person, if any, who controls the Company within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, against any
losses, claims, damages or liabilities to which the Company or such other
persons may become subject, under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in such Shelf Registration Statement or Prospectus,
or any amendment or supplement, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case
to the extent, but 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 Company by such holder,
12
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underwriter, selling agent or other securities professional expressly for use
therein, and (ii) reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or defending
any such action or claim as such expenses are incurred.
(c) Notices of Claims, Etc. Promptly after receipt by an
indemnified party under subsection (a) or (b) above of notice of the
commencement of any action, such indemnified party shall, if a claim in respect
thereof is to be made against an indemnifying party under this Section 5, notify
such indemnifying party in writing of the commencement thereof; but the omission
so to notify the indemnifying party shall not relieve it from any liability
which it may have to any indemnified party otherwise than under this Section 5.
In case any such action shall be brought against any indemnified party and it
shall notify an indemnifying party of the commencement thereof, such
indemnifying party shall be entitled to participate therein and, to the extent
that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party; provided however, that if the defendants in any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be one or more
legal defenses available to it and/or other indemnified parties with are
different from or additional to those available to the indemnifying party, the
indemnifying party shall not have the right to direct the defense of such action
on behalf of such indemnified party or parties and such indemnified party or
parties shall have the right to select separate counsel to defend such action on
behalf of such indemnified party or parties. After notice from the indemnifying
party to such indemnified party of its election so to assume the defense thereof
and approval by such indemnified party of counsel appointed to defend such
action, the indemnifying party will not be liable to such indemnified party
under this Section 5 for any legal or other expenses, other than reasonable
costs of investigation, subsequently incurred by such indemnified party in
connection with the defense thereof, unless (i) the indemnified party shall have
employed separate counsel in accordance with the proviso to the next preceding
sentence (it being understood, however, that in connection with such action the
indemnifying party shall not be liable for the expenses of more than one
separate counsel (in addition to local counsel) in any one action or separate
but substantially similar actions in the same jurisdiction arising out of the
same general allegations or circumstances, representing the indemnified parties
under such paragraph (a) who are parties to such action or actions) or (ii) the
indemnifying party does not promptly retain counsel satisfactory to the
indemnified party or (iii) the indemnifying party has authorized the employment
of counsel for the indemnified party at the expense of the indemnifying party.
After such notice from the indemnifying party to such indemnified party, the
indemnifying party will not be liable for the costs and expenses of any
settlement of such action effected by such indemnified party without the consent
of the indemnifying party. No indemnifying party shall, without the written
consent of the indemnified party, effect the settlement or compromise of, or
consent to the entry of any judgment with respect to, any pending or threatened
action or claim in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified party is an actual or potential
party to such action or claim) unless such settlement, compromise or judgment
(i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to, or an admission of, fault, culpability or a failure to act, by
or on behalf of any indemnified party.
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(d) Contribution. If the indemnification provided for in this
Section 5 is unavailable to or insufficient to hold harmless an indemnified
party under subsection (a) or (b) above in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred to therein, then
each indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative fault of the indemnifying party and the indemnified party in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative fault of such indemnifying party and
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by
such indemnifying party or by such indemnified party, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The parties hereto agree that it would not be just
and equitable if contribution pursuant to this Section 5(d) were determined by
pro rata allocation (even if the Electing Holders or any underwriters, selling
agents or other securities professionals or all of them were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to in this Section 5(d).
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to above
shall be deemed to include any legal or other fees or expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. 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 obligations of the Electing Holders and any underwriters,
selling agents or other securities professionals in this Section 5(d) to
contribute shall be several in proportion to the percentage of principal amount
of Registrable Securities registered or underwritten, as the case may be, by
them and not joint.
(e) Notwithstanding any other provision of this Section 5, in no
event will any (i) Electing Holder be required to undertake liability to any
person under this Section 5 for any amounts in excess of the dollar amount of
the proceeds to be received by such holder from the sale of such holder's
Registrable Securities (after deducting any fees, discounts and commissions
applicable thereto) pursuant to any Shelf Registration Statement under which
such Registrable Securities are to be registered under the Securities Act and
(ii) underwriter, selling agent or other securities professional be required to
undertake liability to any person hereunder for any amounts in excess of the
discount, commission or other compensation payable to such underwriter, selling
agent or other securities professional with respect to the Registrable
Securities underwritten by it and distributed to the public.
(f) The obligations of the Company under this Section 5 shall be
in addition to any liability which the Company may otherwise have to any
Indemnified Person and the obligations of any Indemnified Person under this
Section 5 shall be in addition to any liability which such Indemnified Person
may otherwise have to the Company. The remedies provided in this Section 5 are
not
14
15
exclusive and shall not limit any rights or remedies which may otherwise be
available to an indemnified party at law or in equity.
SECTION 6. Underwritten Offering.
Any holder of Registrable Securities covered by the Shelf Registration
Statement who desires to do so may sell such Registrable Securities in an
underwritten offering. In any such underwritten offering, the investment banker
or bankers and manager or managers that will administer the offering will be
selected by, and the underwriting arrangements with respect thereto will be
approved by the holders of a majority of the Registrable Securities to be
included in such offering; provided, however, that (i) such investment bankers
and managers and underwriting arrangements must be reasonably satisfactory to
the Company and (ii) the Company shall not be obligated to arrange for more than
one underwritten offering during the Effectiveness Period. No holder may
participate in any underwritten offering contemplated hereby unless such holder
(a) agrees to sell such holder's Registrable Securities in accordance with any
approved underwriting arrangements, (b) completes and executes all reasonable
questionnaires, powers of attorney, indemnities, underwriting agreements,
lock-up letters and other documents required under the terms of such approved
underwriting arrangements and (c) at least 20% of the outstanding Registrable
Securities are included in such underwritten offering. The holders participating
in any underwritten offering shall be responsible for any expenses customarily
borne by selling securityholders, including underwriting discounts and
commissions and fees and expenses of counsel to the selling securityholders and
shall reimburse the Company for the fees and disbursements of their counsel,
their independent public accountants and any printing expenses incurred in
connection with such underwritten offerings.
SECTION 7. Miscellaneous.
(a) Other Registration Rights. The Company may grant registration
rights that would permit any Person that is a third party the right to
piggy-back on any Shelf Registration Statement, provided that if the Managing
Underwriter, if any, of such offering delivers an opinion to the Electing
Holders that the total amount of securities which they and the holders of such
piggyback rights intend to include in any Shelf Registration Statement is so
large as to materially adversely affect the success of such offering (including
the price at which such securities can be sold), then only the amount, the
number or kind of securities to be offered for the account of holders of such
piggy-back rights will be reduced to the extent necessary to reduce the total
amount of securities to be included in such offering to the amount, number or
kind recommended by the Managing Underwriter prior to any reduction in the
amount of Registrable Securities to be included.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, qualified,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Company has obtained the written
consent of the holders of a majority in aggregate principal amount of
Registrable Securities then outstanding. Each holder of Registrable Securities
outstanding at the time of any such amendment, waiver or consent or thereafter
shall be bound by any amendment, waiver or consent
15
16
effected pursuant to this Section 7(b), whether or not any notice, writing or
marking indicating such amendment, waiver or consent appears on the Registrable
Securities or is deliverable to such holder.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be given as provided for in the Indenture.
The Purchasers or the Company by notice to the other may designate
additional or different addresses for subsequent notices or communications.
(d) Parties in Interest; Successors and Assigns. The parties to
this Agreement intend that all holders of Registrable Securities shall be
entitled to receive the benefits of this Agreement by reason of such election
with respect to the Registrable Securities which are included in a Shelf
Registration Statement. This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of each of the parties and the holders,
including, without the need for an express assignment or any consent by the
Company thereto, subsequent holders of Registrable Securities. The Company
hereby agrees to extend the benefits of this Agreement to any holder of
Registrable Securities and any such holder may specifically enforce the
provisions of this Agreement as if an original party hereto.
(e) Counterparts. This agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(f) Headings. The headings in this agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. This agreement shall be governed by and
construed in accordance with the laws of the State of New York, without giving
effect to any provisions relating to conflicts of laws.
(h) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way impaired
or affected thereby, it being intended that all of the rights and privileges of
the parties shall be enforceable to the fullest extent permitted by law.
(i) Survival. The respective indemnities, agreements,
representations, warranties and other provisions set forth in this Agreement or
made pursuant hereto shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Electing Holder, any director, officer or partner of such holder, any
agent or underwriter, any director, officer or partner of such agent or
underwriter, or any controlling person of any of the foregoing, and shall
survive the transfer and registration of the Registrable Securities of such
holder.
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Please confirm that the foregoing correctly sets forth the agreement
between the Company and you.
Very truly yours,
MRV COMMUNICATIONS, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: President
The foregoing Registration Rights
Agreement is hereby confirmed and
accepted as of the date first above written.
PRUDENTIAL SECURITIES INCORPORATED
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
BY: PRUDENTIAL SECURITIES INCORPORATED
By: /s/ ▇▇▇▇-▇▇▇▇▇▇ Canfin
-------------------------------
Name: ▇▇▇▇-▇▇▇▇▇▇ Canfin
Title: Managing Director
17
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Exhibit A
MRV COMMUNICATIONS, INC.
Instruction to DTC Participants
____________ __, 199_
URGENT -- IMMEDIATE ATTENTION REQUESTED
Deadline for Response: ___________ _, 199_
The Depository Trust Company ("DTC") has identified you as a DTC
Participant through which beneficial interests in MRV Communications, Inc. (the
"Company") __% Convertible Subordinated Notes due 2003 (the "Securities") are
held.
The Company is in the process of registering the Securities under the
Securities Act of 1933 for resale by the beneficial owners thereof. In order to
have their Securities included in the registration statement, beneficial owners
must complete and return the enclosed Notice of Registration Statement and
Selling Securityholder Questionnaire.
It is important that beneficial owners of the Securities receive a copy
of the enclosed materials as soon as possible as their rights to have the
Securities included in the registration statement depend upon their returning
the Notice and Questionnaire by ________ __, 199_. Please forward a copy of the
enclosed documents to each beneficial owner that holds interests in the
Securities through you. If you require more copies of the enclosed materials or
have any questions pertaining to this matter, please contact MRV Communications,
Inc., ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Telephone: (818)
▇▇▇-▇▇▇▇.
A-1
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MRV COMMUNICATIONS, INC.
Notice of Registration Statement and Selling Securityholder
Questionnaire
________ __, 199_
Reference is hereby made to the Registration Rights Agreement (the
"Registration Rights Agreement") between MRV Communications, Inc. (the
"Company") and the Purchasers named therein. Pursuant to the Registration Rights
Agreement, the Company has filed with the United States Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (the "Shelf
Registration Statement") for the registration and resale under Rule 415 of the
Securities Act of 1933, as amended (the "Securities Act"), of the Company's [ ]%
Convertible Subordinated Notes due 2003 (the "Securities") and the shares of
common stock, par value $.0034 per share (the "Common Stock"), issuable upon
conversion thereof. A copy of the Registration Rights Agreement is attached
hereto. All capitalized terms not otherwise defined herein shall have the
meanings ascribed thereto in the Registration Rights Agreement.
Each beneficial owner of Registrable Securities (as defined below) is
entitled to have the Registrable Securities beneficially owned by it included in
the Shelf Registration Statement. In order to have Registrable Securities
included in the Shelf Registration Statement, this Notice of Registration
Statement and Selling Securityholder Questionnaire ("Notice and Questionnaire")
must be completed, executed and delivered to the Company's counsel at the
address set forth herein for receipt on or before ________ __, 199_. Beneficial
owners of Registrable Securities who do not complete, execute and return this
Notice and Questionnaire by such date (i) will not be named as selling
securityholders in the Shelf Registration Statement and (ii) may not use the
Prospectus forming a part thereof for resales of Registrable Securities.
Certain legal consequences arise from being named as a selling
securityholder in the Shelf Registration Statement and related Prospectus.
Accordingly, holders and beneficial owners of Registrable Securities are advised
to consult their own securities law counsel regarding the consequences of being
named or not being named as a selling securityholder in the Shelf Registration
Statement and related Prospectus.
The term "Registrable Securities" is defined in the Registration Rights
Agreement to mean all or any portion of the Securities issued from time to time
under the Indenture in registered form and the shares of Common Stock issuable
upon conversion of such Securities, including any Securities initially issued in
bearer form and constituting the unsold allotment of a distributor (within the
meaning of Regulation S under the Securities Act) of such Securities and later
exchanged for Securities in registered form; provided, however, that a security
ceases to be a Registrable Security when it is no longer a Restricted Security.
The term "Restricted Security" is defined in the Registration Rights Agreement
to mean any Security or share of Common Stock issuable upon conversion thereof
except any such Security or share of Common Stock which (i) has been effectively
A-2
20
registered under the Securities Act and sold in a manner contemplated by the
Shelf Registration Statement, (ii) has been transferred in compliance with Rule
144 under the Securities Act (or any successor provision thereto) or is
transferable pursuant to paragraph (k) of such Rule 144 (or any successor
provision thereto), (iii) has been sold in compliance with Regulation S under
the Securities Act (or any successor thereto) and does not constitute the unsold
allotment of a distributor within the meaning of Regulation S under the
Securities Act, or (iv) has otherwise been transferred and a new Security or
share of Common Stock not subject to transfer restrictions under the Securities
Act has been delivered by or on behalf of the Company in accordance with Section
3.5 of the Indenture.
ELECTION
The undersigned holder (the "Selling Securityholder") of Registrable
Securities hereby elects to include in the Shelf Registration Statement the
Registrable Securities beneficially owned by it and listed below in Item (3).
The undersigned, by signing and returning this Notice and Questionnaire, agrees
to be bound with respect to such Registrable Securities by the terms and
conditions of this Notice and Questionnaire and the Registration Rights
Agreement, including, without limitation, Section 5 of the Registration Rights
Agreement, as if the undersigned Selling Securityholder were an original party
thereto.(1)
Upon any sale of Registrable Securities pursuant to the Shelf
Registration Statement, the Selling Securityholder will be required to deliver
to the Company and Trustee the Notice of Transfer set forth in Appendix A to the
Prospectus. This Notice of Transfer is set forth as Exhibit A to the Prospectus.
The Selling Securityholder hereby provides the following information to
the Company and represents and warrants that such information is accurate and
complete:
QUESTIONNAIRE
(a) (i) Full Legal Name of Selling Securityholder:_________________.
(ii) Full Legal Name of Registered Holder (if not the same as in
(a) above) of Registrable Securities Listed in (3) below:______________.
(iii) Full Legal Name of DTC Participant (if applicable and if
not the same as (b) above) Through Which Registrable Securities Listed
in (3) below are Held:_________________________________________________
_______________________________________________________________________
(b) Address for Notices to Selling Securityholder:
_______________________________________________________________________
A-3
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_______________________________________________________________________
_______________________________________________________________________
Telephone: _________________________
Fax:________________________________
Contact Person:_____________________
(c) Beneficial Ownership of Securities and shares of Common Stock
issued upon conversion of Securities: _________________________________________.
Except as set forth below in this Item (3), the undersigned does not
beneficially own any Securities or shares of Common Stock issued upon conversion
of any Securities.
(i) Principal amount of Registrable Securities (as defined in
the Registration Rights Agreement) beneficially owned:_________________.
CUSIP No(s). of such Registrable Securities:___________________________
Number of shares of Common Stock (if any) issued upon conversion of such
Registrable Securities_________________________________________________
(ii) Principal amount of Securities other than Registrable
Securities beneficially owned:_________________________________________
CUSIP No(s). of such other Securities:______________________________
Number of shares of Common Stock (if any) issued upon conversion of such
other Securities:______________________________________________________
(iii) Principal amount of Registrable Securities which
the undersigned wishes to be included in the Shelf Registration
Statement:______________________________________________________________
CUSIP No(s). of such Registrable Securities to be included in the Shelf
Registration Statement:________________________________________________
Number of shares of Common Stock (if any) issued upon conversion of
Registrable Securities which are to be included in the Shelf
Registration Statement:________________________________________________
(d) Beneficial Ownership of Other Securities of the Company.
Except as set forth below in this Item (4), the undersigned Selling
Securityholder is not the beneficial or registered owner
A-4
22
of any shares of Common Stock or any other securities of the Company, other than
the Securities and shares of Common Stock listed above in Item (3).
State any exceptions here:
(e) Relationships with the Company. Except as set forth below,
neither the Selling Securityholder nor any of its affiliates, officers,
directors or principal equity holders (5% or more) has held any position or
office or has had any other material relationship with the Company (or its
predecessors or affiliates) during the past three years. State any exceptions
here:
(f) Plan of Distribution. Except as set forth below, the
undersigned Selling Securityholder intends to distribute the Registrable
Securities listed above in Item (3) only as follows (if at all): Such
Registrable Securities may be sold from time to time directly by the undersigned
Selling Securityholder or, alternatively, through underwriters, broker-dealers
or agents. Such Registrable Securities may be sold in one or more transactions
at fixed prices, at prevailing market prices at the time of sale, at varying
prices determined at the time of sale, or at negotiated prices. Such sales may
be effected in transactions (which may involve crosses or block transactions)
(i) on any national securities exchange or quotation service on which the
Registered Securities may be listed or quoted at the time of sale, (ii) in the
over-the-counter market, (iii) in transactions otherwise than on such exchanges
or services or in the over-the-counter market, or (iv) through the writing of
options. In connection with sales of the Registrable Securities or otherwise,
the Selling Securityholder may enter into hedging transactions with
broker-dealers, which may in turn engage in short sales of the Registrable
Securities in the course of hedging the positions they assume. The Selling
Securityholder may also sell Registrable Securities short and deliver
Registrable Securities to close out such short positions, or loan or pledge
Registrable Securities to broker-dealers that in turn may sell such securities.
State any exceptions here:
Note: In no event may such method(s) of distribution take the form of an
underwritten offering of the Registrable Securities without the prior agreement
of the Company.
By signing below, the Selling Securityholder acknowledges that it
understands its obligation to comply, and agrees that it will comply, with the
provisions of the Exchange Act and the rules and regulations thereunder. In the
event that the Selling Securityholder transfers all or any portion of the
Registrable Securities listed in Item (3) above after the date on which such
information is provided to the Company, the Selling Securityholder agrees to
notify the transferee(s) at the time of the transfer of its rights and
obligations under this Notice and Questionnaire and the Registration Rights
Agreement.
A-5
23
By signing below, the Selling Securityholder consents to the disclosure
of the information contained herein in its answers to Items (1) through (6)
above and the inclusion of such information in the Shelf Registration Statement
and related Prospectus. The Selling Securityholder understands that such
information will be relied upon by the Company in connection with the
preparation of the Shelf Registration Statement and related Prospectus.
In accordance with the Selling Securityholder's obligation under Section
3(a) of the Registration Rights Agreement to provide such information as may be
required by law for inclusion in the Shelf Registration Statement, the Selling
Securityholder agrees to promptly notify the Company of any inaccuracies or
changes in the information provided herein which may occur subsequent to the
date hereof at any time while the Shelf Registration Statement remains in
effect. All notices hereunder and pursuant to the Registration Rights Agreement
shall be made in writing, by hand-delivery, first-class mail, or air courier
guaranteeing overnight delivery as follows:
(i) To the Company:
MRV Communications, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer
(ii) With a copy to:
Freshman, Marantz, Orlanski, ▇▇▇▇▇▇ & ▇▇▇▇▇
Eighth Floor, East Tower
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Once this Notice and Questionnaire is executed by the Selling
Securityholder and received by the Company's counsel, the terms of this Notice
and Questionnaire, and the representations and warranties contained herein,
shall be binding on, shall inure to the benefit of and shall be enforceable by
the respective successors, heirs, personal representatives, and assigns of the
Company and the Selling Securityholder (with respect to the Registrable
Securities beneficially owned by such Selling Securityholder and listed in Item
(3) above. This Agreement shall be governed in all respects by the laws of the
State of New York.
A-6
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IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused
this Notice and Questionnaire to be executed and delivered either in person or
by its duly authorized agent.
Dated:
-----------------------------------------
Selling Securityholder
(Print/type full legal name of beneficial
owner of Registrable Securities)
By:
-------------------------------
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON
OR BEFORE ___________ __, 199_ TO THE COMPANY'S COUNSEL AT:
Freshman, Marantz, Orlanski, ▇▇▇▇▇▇ & ▇▇▇▇▇
Eighth Floor, East Tower
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
A-7
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Exhibit B
NOTICE OF TRANSFER PURSUANT TO REGISTRATION
STATEMENT
American Stock Transfer & Trust Company
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Services
Re: MRV Communications, Inc. (the "Company")
5% Convertible Subordinated Notes due 2003 (the "Notes")
Dear Sirs:
Please be advised that _____________________ has transferred
$___________ aggregate principal amount of the above-referenced Notes pursuant
to an effective Registration Statement on Form S-3 (File No. 333-____) filed by
the Company.
We hereby certify that the prospectus delivery requirements, if any, of
the Securities Act of 1933, as amended, have been satisfied and that the
above-named beneficial owner of the Notes is named as a "Selling Holder" in the
Prospectus dated ___________, 199_ or in supplements thereto, and that the
aggregate principal amount of the Notes transferred are the Notes listed in such
Prospectus opposite such owner's name.
Dated:
Very truly yours,
-------------------------------
(Name)
By:
-------------------------------
(Authorized Signature)
B-1
