Exhibit 4.6
MINDSPEED TECHNOLOGIES, INC.
WARRANTS TO PURCHASE COMMON STOCK
REGISTRATION RIGHTS AGREEMENT
June 27, 2003
Conexant Systems, Inc.
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Dear Sirs:
Mindspeed Technologies, Inc., a Delaware corporation (the
"COMPANY"), proposes to issue and deliver to Conexant Systems, Inc., a Delaware
corporation ("CONEXANT"), warrants (the "WARRANTS") to purchase up to eight
million three hundred thirty three thousand three hundred thirty four
(8,333,334) shares of common stock, par value $.01 per share, of the Company,
together with the associated preferred share purchase rights (the "COMMON
STOCK"), in connection with loans made from time to time by Conexant to the
Company pursuant to the terms of the Credit Agreement dated as of the date
hereof between Conexant and the Company (the "LOANS"). In connection with the
Loans, the Company agrees with Conexant, for the benefit of (i) Conexant and
(ii) the holders of the Warrants and the Common Stock issuable upon exercise of
the Warrants (collectively, the "SECURITIES") from time to time until such time
as the Securities have been sold pursuant to a Shelf Registration Statement (as
defined below) (each of the forgoing, including Conexant, a "HOLDER" and
collectively, the "HOLDERS"), as follows:
1. Shelf Registration. (a) The Company shall, at its
cost, prepare and, as promptly as practicable (but in no event more than 90 days
after the date hereof) file with the Securities and Exchange Commission (the
"COMMISSION") and thereafter use its reasonable best efforts to cause to be
declared effective as soon as practicable a registration statement on Form S-3
(the "SHELF REGISTRATION STATEMENT") relating to: (i) the offer and resale of
the Warrants; (ii) the issuance by the Company of the Common Stock upon exercise
of the Warrants; and (iii) the offer and resale of the Common Stock issued or
issuable upon exercise of the Warrants (the "TRANSFER RESTRICTED SECURITIES")
from time to time in accordance with the methods of distribution set forth in
the Shelf Registration Statement and Rule 415 under the Securities Act of 1933,
as amended (the "SECURITIES ACT") (hereinafter, the "SHELF REGISTRATION");
provided, however, that no Holder (other than Conexant) shall be entitled to
have the Securities held by it covered by the Shelf Registration Statement
unless the Holder agrees in writing to be bound by all the provisions of this
Agreement applicable to the Holder.
(b) The Company shall use its reasonable best efforts to
keep the Shelf Registration Statement continuously effective in order to permit
the prospectus included therein (the "PROSPECTUS") to be lawfully delivered by
the Holders of the relevant Securities for a period beginning from the date of
its effectiveness and ending on June 27, 2013 (or for such longer period if
extended pursuant to Section 2(h)) or such shorter period that will terminate
when all the Securities covered by the Shelf Registration Statement (i) have
been sold pursuant thereto or (ii) are no longer restricted securities (as
defined in Rule 144(k) under the Securities Act, or any successor rule thereof)
and, if Conexant is a Holder, it is not then an affiliate of the Company (in any
such case, such period being called the "SHELF REGISTRATION PERIOD"). The
Company shall be deemed not to have used its reasonable best efforts to keep the
Shelf Registration Statement effective during the requisite period if it
voluntarily takes any action that would result in Holders of Securities covered
thereby not being able to offer and sell the Securities during that period,
unless such action is (i) required by applicable law or (ii) taken by the
Company in good faith upon the occurrence of any event contemplated by Section
2(b)(v), and the Company thereafter complies with the requirements of Section
2(h).
(c) Notwithstanding any other provisions of this
Agreement to the contrary, the Company shall cause the Shelf Registration
Statement and the Prospectus and any amendment or supplement thereto, as of the
effective date of the Shelf Registration Statement, amendment or supplement, (i)
to comply in all material respects with the applicable requirements of the
Securities Act and the rules and regulations of the Commission and (ii) not to
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
2. Registration Procedures. In connection with the Shelf
Registration contemplated by Section 1, the following provisions shall apply:
(a) The Company shall (i) furnish to Conexant, prior to
the filing thereof with the Commission, a copy of the Shelf Registration
Statement and each amendment thereof and each supplement, if any, to the
Prospectus included therein and, in the event that Conexant is participating in
the Shelf Registration Statement, shall use its reasonable best efforts to
reflect in each such document, when so filed with the Commission, such comments
as Conexant reasonably may propose; and (ii) include the names of the Holders
who propose to sell Securities pursuant to the Shelf Registration Statement as
selling securityholders.
(b) The Company shall give written notice to the Holders
of the Securities (which notice pursuant to clauses (ii)-(v) shall be
accompanied by an instruction to suspend the use of the Prospectus until the
requisite changes have been made):
(i) when the Shelf Registration Statement or any
amendment thereto has been filed with the Commission and when the Shelf
Registration Statement or any post-effective amendment thereto has
become effective;
(ii) of any request by the Commission for amendments or
supplements to the Shelf Registration Statement or the Prospectus
included therein or for additional information;
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(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Shelf Registration Statement or the
initiation of any proceedings for that purpose;
(iv) of the receipt by the Company or its legal counsel of
any notification with respect to the suspension of the qualification of
the Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and
(v) of the happening of any event that requires the
Company to make changes in the Shelf Registration Statement or the
Prospectus in order that the Shelf Registration Statement or the
Prospectus does not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein (in the case of the
Prospectus, in light of the circumstances under which they were made)
not misleading, which written notice need not provide any detail as to
the nature of such event.
(c) The Company shall make every reasonable effort to
obtain the withdrawal at the earliest possible time of any order suspending the
effectiveness of the Shelf Registration Statement.
(d) The Company shall furnish to each Holder of the
Securities included within the coverage of the Shelf Registration, without
charge, at least one copy of the Shelf Registration Statement and any
post-effective amendment thereto, including financial statements and schedules,
and, if the Holder so requests in writing, all exhibits thereto (including
those, if any, incorporated by reference).
(e) The Company shall, during the Shelf Registration
Period, deliver to each Holder of Securities included within the coverage of the
Shelf Registration, without charge, as many copies of the Prospectus (including
each preliminary Prospectus) included in the Shelf Registration Statement and
any amendment or supplement thereto as such person may reasonably request. The
Company consents, subject to the provisions of this Agreement, to the use of the
Prospectus or any amendment or supplement thereto by each of the selling Holders
of the Securities in connection with the offering and sale of the Securities
covered by the Prospectus, or any amendment or supplement thereto, included in
the Shelf Registration Statement.
(f) Prior to any public offering of the Securities
pursuant to the Shelf Registration Statement, the Company shall register or
qualify or cooperate with the Holders of the Securities included therein and
their respective counsel in connection with the registration or qualification of
the Securities for offer and sale under the securities or "blue sky" laws of
such states of the United States as any Holder of the Securities reasonably
requests in writing and do any and all other acts or things necessary or
advisable to enable the offer and sale in such jurisdictions of the Securities
covered by the Shelf Registration Statement; provided, however, that the Company
shall not be required to (i) qualify generally to do business in any
jurisdiction where it is not then so qualified or (ii) take any action which
would subject it to general service of process or to taxation in any
jurisdiction where it is not then so subject.
(g) The Company shall cooperate with the Holders of the
Securities to facilitate the timely preparation and delivery of certificates
representing the Securities to be sold pursuant to any
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Shelf Registration Statement free of any restrictive legends and in such
denominations and registered in such names as the Holders may request a
reasonable period of time prior to sales of the Securities pursuant to the Shelf
Registration Statement.
(h) Upon the occurrence of any event contemplated by
paragraphs (ii) through (v) of Section 2(b) during the period for which the
Company is required to maintain an effective Shelf Registration Statement, the
Company shall as required hereby prepare and file a post-effective amendment to
the Shelf Registration Statement or an amendment or supplement to the Prospectus
and any other required document so that, as thereafter delivered to the Holders
or purchasers of the Securities, the Prospectus will not contain an untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided, however,
that the Company may delay filing and distributing any such supplement or
amendment (and continue the suspension of the use of the Prospectus) if the
Company determines in good faith that such supplement or amendment would, in the
reasonable judgment of the Company, (i) interfere with or affect the negotiation
or completion of a transaction that is being contemplated by the Company or (ii)
involve initial or continuing disclosure obligations that are not in the best
interests of the Company's stockholders at such time; provided, further, that
neither such delay nor such suspension shall extend for a period of more than 45
consecutive days or an aggregate of 90 days in any twelve-month period. If the
Company notifies the Holders in accordance with paragraphs (ii) through (v) of
Section 2(b) to suspend the use of the Prospectus until the requisite changes to
the Prospectus have been made, then the Holders shall suspend use of the
Prospectus, and the period of effectiveness of the Shelf Registration Statement
provided for in Section 1(b) shall be extended by the number of days from and
including the date of the giving of such notice to and including the date when
the Holders shall have received such amended or supplemented Prospectus pursuant
to this Section 2(h).
(i) Not later than the effective date of the Shelf
Registration Statement, the Company will provide CUSIP numbers for the Warrants
and the Common Stock registered under the Shelf Registration Statement.
(j) The Company will comply with all rules and
regulations of the Commission to the extent and so long as they are applicable
to the Shelf Registration and will make generally available to its security
holders (or otherwise provide in accordance with Section 11(a) of the Securities
Act) an earnings statement satisfying the provisions of Section 11(a) of the
Securities Act, no later than 45 days after the end of a 12-month period (or 90
days, if such period is a fiscal year) beginning with the first month of the
Company's first fiscal quarter commencing after the effective date of the Shelf
Registration Statement, which statement shall cover such 12-month period.
(k) Each Holder agrees, by acquisition of the Securities,
that no Holder shall be entitled to sell any such Securities pursuant to the
Shelf Registration Statement or to receive a Prospectus relating thereto, unless
such Holder has furnished the Company with a Notice and Questionnaire as
required pursuant to Section 2(l) and the information set forth in the next
sentence. Each Holder agrees promptly to furnish the Company all information
required to be disclosed in order to make the information previously furnished
to the Company by such Holder not misleading and any
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other information regarding such Holder and the distribution of such Securities
as the Company may from time to time reasonably request.
(l) Each Holder agrees that if such Holder wishes to sell
such Holder's Securities pursuant to the Shelf Registration Statement and
related Prospectus, it will do so in accordance with this Section 2(l). Each
Holder wishing to sell Securities pursuant to a Shelf Registration Statement and
related Prospectus agrees to deliver a properly completed and signed Notice and
Questionnaire (the form of which is attached as Annex A to this Agreement) to
the Company at least ten (10) business days prior to any intended distribution
of Securities under the Shelf Registration Statement. From and after the date
the Shelf Registration Statement is declared effective, the Company shall, as
promptly as is practicable after the date a Notice and Questionnaire is
delivered, and in any event within ten (10) business days after such date, (i)
if required by law, file with the Commission a post-effective amendment to the
Shelf Registration Statement or prepare and, if required by applicable law, file
a supplement to the related Prospectus or a supplement or amendment to any
document incorporated therein by reference or file any other required document
so that the Holder delivering such Notice and Questionnaire is named a selling
securityholder in the Shelf Registration Statement and the related Prospectus in
such a manner as to permit such Holder to deliver the Prospectus to purchasers
of the Securities in accordance with applicable law and, if the Company shall
file a post-effective amendment to the Shelf Registration Statement, use all
reasonable efforts to cause such post-effective amendment to be declared
effective under the Securities Act as promptly as practical, but in any event by
the date that is thirty (30) business days after the date such post-effective
amendment is required by this clause to be filed; (ii) provide the Holder copies
of any documents filed pursuant to this Section; and (iii) notify the Holder as
promptly as practicable after the effectiveness under the Securities Act of any
post-effective amendment filed pursuant to this Section; provided, that if such
Notice and Questionnaire is delivered during a period in which the use of the
Prospectus is suspended pursuant to Section 2(b), the Company shall so inform
the Holder delivering such Notice and Questionnaire and shall take the actions
set forth in clauses (i), (ii) and (iii) above upon expiration of such
suspension period. Notwithstanding anything contained herein to the contrary,
the Company shall be under no obligation to name any Holder that has not
supplied the requisite information required by this Section as a selling
securityholder in the Shelf Registration Statement and related Prospectus and
any amendment or supplement thereto; provided, however, that any Holder that has
subsequently supplied the requisite information required by this Section
pursuant to the provisions of this Section (whether or not the Holder has
supplied the requisite information required by this Section at the time the
Shelf Registration Statement was declared effective) shall be named as a selling
securityholder in the Shelf Registration Statement or related Prospectus in
accordance with the requirements of this Section.
(m) The Company shall enter into such customary
agreements (including, if requested, an underwriting agreement in customary
form) and take all such other actions, if any, as any Holder shall reasonably
request in order to facilitate the disposition of the Securities pursuant to the
Shelf Registration; provided, however, that the Company shall not be required to
facilitate an underwritten offering pursuant to a Shelf Registration Statement
by any Holders unless the offering relates to Securities having a fair market
value of at least $10 million.
(n) The Company shall (i) make reasonably available for
inspection by the Holders, any underwriter participating in any disposition
pursuant to the Shelf Registration Statement and any
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attorney, accountant or other agent retained by the Holders or any such
underwriter, all relevant financial and other records, pertinent corporate
documents and properties of the Company and (ii) cause the Company's officers,
directors, employees, accountants and auditors to supply all relevant
information reasonably requested by the Holders or any such underwriter,
attorney, accountant or agent in connection with the Shelf Registration
Statement, in each case, as shall be reasonably necessary to enable such persons
to conduct a reasonable investigation within the meaning of Section 11 of the
Securities Act; provided, however, that the foregoing inspection and information
gathering shall be coordinated on behalf of the Holders by Conexant (or by
another representative designated by and on behalf of the Holders if Conexant is
not participating in the disposition) and on behalf of the other parties, by one
counsel designated by and on behalf of such other parties as described in
Section 3. The Holders shall hold, and shall cause any such underwriter, and
any attorney, accountant or other agent retained by the Holders or any such
underwriter to hold, in strict confidence any and all confidential information
received by them pursuant to this Section 2(n), exercising the same care with
respect to such information as it takes to preserve confidentiality for its own
similar information.
(o) In the event of an underwritten offering, the Company
shall use its reasonable best efforts to cause (i) its counsel to deliver an
opinion and updates thereof relating to the Securities in customary form
addressed to the Holders and the managing underwriters, if any, thereof, and
dated, in the case of the initial opinion, the effective date of the Shelf
Registration Statement (it being agreed that the matters to be covered by such
opinion shall include, subject to customary assumptions and other
qualifications, the due incorporation and good standing of the Company and its
subsidiaries; the qualification of the Company and its subsidiaries to transact
business as foreign corporations; the due authorization, execution and delivery
of the relevant agreement of the type referred to in Section 2(m); the due
authorization, execution, authentication and issuance, and the validity and
enforceability, of the Securities; the absence of material legal or governmental
proceedings involving the Company and its subsidiaries; the absence of
governmental approvals required to be obtained in connection with the Shelf
Registration Statement, the offering and sale of the Securities, or any
agreement of the type referred to in Section 2(m); the compliance as to form of
the Shelf Registration Statement and any documents incorporated by reference
therein with the requirements of the Securities Act, and, as of the date of the
opinion and as of the effective date of the Shelf Registration Statement or most
recent post-effective amendment thereto, as the case may be, the absence from
the Shelf Registration Statement and the Prospectus included therein, as then
amended or supplemented, and from any documents incorporated by reference
therein of an untrue statement of a material fact or the omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading (in the case of any such documents, in the
light of the circumstances existing at the time that such documents were filed
with the Commission under the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT")); (ii) its officers to execute and deliver all customary
documents and certificates and updates thereof requested by any underwriters of
the Securities; and (iii) its independent public accountants and the independent
public accountants with respect to any other entity for which financial
information is provided in the Shelf Registration Statement to provide to the
selling Holders of the applicable Securities and any underwriter therefor a
comfort letter in customary form and covering matters of the type customarily
covered in comfort letters in connection with primary underwritten offerings,
subject to receipt of appropriate documentation as contemplated, and only if
permitted, by Statement of Auditing Standards No. 72.
(p) The Company shall use its reasonable best efforts to
take all other steps necessary to effect the registration of the Securities
covered by a Shelf Registration Statement contemplated hereby.
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3. Registration Expenses. (a) The Company shall bear all
fees and expenses in connection with the performance of its obligations
hereunder, whether a Shelf Registration Statement is filed or becomes effective,
and shall bear or reimburse the Holders of Securities covered by the Shelf
Registration Statement for reasonable fees and disbursements of not more than
one counsel, designated by Conexant (for so long as Conexant is a Holder) or, if
Conexant is no longer a Holder, by the Holders of a majority in interest of the
Securities covered by the Shelf Registration Statement, in each case, to act as
counsel for the Holders in connection therewith.
(b) In connection with any underwritten Shelf
Registration Statement, the participating Holders shall be responsible for the
payment of any and all underwriters and brokers and dealers discounts and
selling commissions and such discounts and commissions shall be borne by the
participating Holders in proportion to the number of Securities sold by such
Holders.
4. Indemnification. (a) The Company agrees to indemnify
and hold harmless each Holder and each person, if any, who controls the Holder
within the meaning of the Securities Act or the Exchange Act (each Holder, and
such controlling persons are referred to collectively as the "INDEMNIFIED
PARTIES") from and against any losses, claims, damages or liabilities, joint or
several, or any actions in respect thereof (including, but not limited to, any
losses, claims, damages, liabilities or actions relating to purchases and sales
of the Securities) to which each Indemnified Party may become subject under the
Securities Act, the Exchange Act or otherwise, insofar as such losses, claims,
damages, liabilities or actions arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the Shelf
Registration Statement or Prospectus including any document incorporated by
reference therein, or in any amendment or supplement thereto or in any
preliminary Prospectus relating to the Shelf Registration, or arise out of, or
are based upon, the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and shall reimburse, as incurred, the Indemnified Parties for
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action in
respect thereof; provided, however, that (i) the Company shall not be liable in
any such case to the extent that such loss, claim, damage or liability arises
out of or is based upon any untrue statement or alleged untrue statement or
omission or alleged omission made in the Shelf Registration Statement or
Prospectus or in any amendment or supplement thereto or in any preliminary
Prospectus relating to the Shelf Registration in reliance upon and in conformity
with written information pertaining to the Holder and furnished to the Company
by or on behalf of the Holder specifically for inclusion therein and (ii) with
respect to any untrue statement or omission or alleged untrue statement or
omission made in any preliminary Prospectus relating to the Shelf Registration
Statement, the indemnity agreement contained in this subsection (a) shall not
inure to the benefit of any Holder from whom the person asserting any such
losses, claims, damages or liabilities purchased the Securities concerned, to
the extent that a Prospectus relating to the Securities was required to be
delivered by the Holder under the Securities Act in connection with such
purchase and any such loss, claim, damage or liability of the Holder results
from the fact that there was not sent or given to such person, at or prior to
the written confirmation of the sale of the Securities to such person, a copy of
the final Prospectus if the Company had previously furnished copies thereof to
the Holder; provided further, however, that this indemnity agreement will be in
addition to any liability which the Company may otherwise have to the
Indemnified Party. The Company shall also indemnify underwriters, their officers
and directors and each person who controls such underwriters within the
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meaning of the Securities Act or the Exchange Act to the same extent as provided
above with respect to the indemnification of the Holders of the Securities if
requested by the Holders.
(b) Each Holder, severally and not jointly, will
indemnify and hold harmless the Company, its officers and directors and each
person, if any, who controls the Company within the meaning of the Securities
Act or the Exchange Act from and against any losses, claims, damages or
liabilities or any actions in respect thereof, to which the Company or any such
controlling person may become subject under the Securities Act, the Exchange Act
or otherwise, insofar as such losses, claims, damages, liabilities or actions
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in the Shelf Registration Statement or Prospectus
or in any amendment or supplement thereto or in any preliminary Prospectus
relating to the Shelf Registration, or arise out of or are based upon the
omission or alleged omission to state therein a material fact necessary to make
the statements therein not misleading, but in each case only to the extent that
the untrue statement or omission or alleged untrue statement or omission was
made in reliance upon and in conformity with written information pertaining to
the Holder and furnished to the Company by or on behalf of the Holder
specifically for inclusion therein; and, subject to the limitation set forth
immediately preceding this clause, shall reimburse, as incurred, the Company for
any legal or other expenses reasonably incurred by the Company or any such
controlling person in connection with investigating or defending any loss,
claim, damage, liability or action in respect thereof. This indemnity agreement
will be in addition to any liability which the Holder may otherwise have to the
Company or any of its controlling persons.
(c) Promptly after receipt by an indemnified party under
this Section 4 of notice of the commencement of any action or proceeding
(including a governmental investigation), such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 4, notify the indemnifying party of the commencement thereof; but the
failure to notify the indemnifying party shall not relieve it from any liability
that it may have under subsection (a) or (b) above except to the extent that it
has been materially prejudiced (through the forfeiture of substantive rights or
defenses) by such failure; and provided further that the failure to notify the
indemnifying party shall not relieve it from any liability that it may have to
an indemnified party otherwise than under subsection (a) or (b) above. In case
any such action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof the
indemnifying party will not be liable to such indemnified party under this
Section 4 for any legal or other expenses, other than reasonable costs of
investigation, subsequently incurred by such indemnified party in connection
with the defense thereof. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party unless such settlement (i) includes an unconditional release of such
indemnified party from all liability on any claims that are the subject matter
of such action, and (ii) does not include a statement as to or an admission of
fault, culpability or a failure to act by or on behalf of any indemnified party.
No indemnified party shall effect any settlement of any pending or threatened
action without the prior
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written consent of the indemnifying party, which such consent shall not be
unreasonably withheld or delayed.
(d) If the indemnification provided for in this Section 4
is unavailable or insufficient to hold harmless an indemnified party under
subsections (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to in
subsection (a) or (b) above (i) in such proportion as is appropriate to reflect
the relative benefits received by the indemnifying party or parties on the one
hand and the indemnified party on the other from the sale of the Securities,
pursuant to the Shelf Registration, or (ii) if the allocation provided by the
foregoing clause (i) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the indemnifying party or parties on
the one hand and the indemnified party on the other in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities (or actions in respect thereof) as well as any other relevant
equitable considerations. The relative fault of the parties shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company on the one hand or
the Holder or such other indemnified party, as the case may be, on the other,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The amount paid by
an indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any action or claim which is
the subject of this subsection (d). Notwithstanding any other provision of this
subsection (d), the Holders shall not be required to contribute any amount in
excess of the amount by which the net proceeds received by the Holders from the
sale of the Securities pursuant to the Shelf Registration Statement exceeds the
amount of damages which the Holders have otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For purposes
of this subsection (d), each person, if any, who controls such indemnified party
within the meaning of the Securities Act or the Exchange Act shall have the same
rights to contribution as such indemnified party and each person, if any, who
controls the Company within the meaning of the Securities Act or the Exchange
Act shall have the same rights to contribution as the Company.
(e) The agreements contained in this Section 4 shall
survive the sale of the Securities pursuant to the Shelf Registration Statement
and shall remain in full force and effect, regardless of any termination or
cancellation of this Agreement or any investigation made by or on behalf of any
indemnified party.
5. Rule 144. The Company shall use its reasonable best efforts
to file the reports required to be filed by it under the Securities Act and the
Exchange Act in a timely manner and, if at any time the Company is not required
to file such reports, it will, upon the request of any Holder, make publicly
available other information so long as necessary to permit sales of their
securities pursuant to Rule 144. The Company covenants that it will take such
further action as any Holder may reasonably request, all to the extent required
from time to time to enable the Holder to sell Transfer Restricted
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Securities without registration under the Securities Act within the limitation
of the exemptions provided by Rule 144. The Company will provide a copy of this
Agreement to prospective purchasers of Securities identified to the Company by
Conexant upon request. Upon the request of any Holder, the Company shall deliver
to the Holder a written statement as to whether it has complied with such
requirements. Notwithstanding the foregoing, nothing in this Section 5 shall be
deemed to require the Company to register any of its securities pursuant to the
Exchange Act.
6. Underwritten Registrations. If any of the Transfer
Restricted Securities covered by the Shelf Registration are to be sold in an
underwritten offering, the investment banker or investment bankers and manager
or managers that will administer the offering ("MANAGING UNDERWRITERS") will be
selected by the Holders of a majority in interest of the Transfer Restricted
Securities to be included in such offering and such selection shall be subject
to the Company's consent, which shall not be unreasonably withheld or delayed.
No person may participate in any underwritten registration
hereunder unless such person (i) agrees to sell such person's Transfer
Restricted Securities on the basis reasonably provided in any underwriting
arrangements approved by the persons entitled hereunder to approve such
arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
7. Miscellaneous.
(a) Remedies. The Company acknowledges and agrees that
any failure by the Company to comply with its obligations hereunder may result
in material irreparable injury to the Holders for which there is no adequate
remedy at law, that it will not be possible to measure damages for such injuries
precisely and that, in the event of any such failure, any Holder may obtain such
relief as may be required to specifically enforce the Company's obligations
hereunder.
(b) No Inconsistent Agreements. The Company will not on
or after the date of this Agreement enter into any agreement with respect to its
securities that is inconsistent with the rights granted to the Holders in this
Agreement or otherwise conflicts with the provisions hereof. The rights granted
to the Holders hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of the Company's securities
under any agreement in effect on the date hereof.
(c) Amendments and Waivers. The provisions of this
Agreement may not be amended, modified or supplemented, and waivers or consents
to departures from the provisions hereof may not be given, except in writing by
the Company and by the holders of a majority in interest of the Securities
affected by such amendment, modification, supplement, waiver or consents.
Without the written consent of each Holder of the Securities, however, no
modification may change the provisions relating to the Liquidated Damages
Payment Amount.
(d) Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing by hand delivery,
first-class mail, facsimile transmission, or air
10
courier which guarantees overnight delivery and addressed as set forth below, or
pursuant to such other instructions as may be designated by the party for
receipt of such notice:
(1) if to Conexant:
Conexant Systems, Inc.
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Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇
Senior Vice President, General
Counsel and Secretary
(2) if to any other Holder of the Securities, at the most
current address given by the Holder to the Company;
(3) if to the Company:
Mindspeed Technologies, Inc.
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Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Senior Vice President, Chief Financial
Officer and Treasurer
All such notices and communications shall be deemed to have
been duly given at the time delivered by hand, if personally delivered; three
business days after being deposited in the mail, postage prepaid, if mailed;
when receipt is acknowledged by recipient's facsimile machine operator, if sent
by facsimile transmission; and on the day delivered, if sent by overnight air
courier guaranteeing next day delivery.
(e) Third Party Beneficiaries. The other Holders shall be
third party beneficiaries to the agreements made hereunder between the Company,
on the one hand, and Conexant, on the other hand, and shall have the right to
enforce such agreements directly to the extent they may deem such enforcement
necessary or advisable to protect their rights or the rights of Holders
hereunder.
(f) Successors and Assigns. This Agreement shall be
binding upon the Company and its successors and assigns.
(g) Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
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(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
By the execution and delivery of this Agreement, the Company
submits to the nonexclusive jurisdiction of any federal or state court in the
City of New York, State of New York.
(j) Severability. If any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(k) Securities Held by the Company. Whenever the consent
or approval of Holders of a specified percentage of principal amount of
Securities is required hereunder, Securities held by the Company or its
affiliates (other than (i) Conexant or (ii) subsequent Holders of Securities if
such subsequent Holders are deemed to be affiliates solely by reason of their
holdings of the Securities) shall not be counted in determining whether such
consent or approval was given by the Holders of such required percentage.
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If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between Conexant and the Company in accordance with its terms.
Very truly yours,
MINDSPEED TECHNOLOGIES, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President, Chief Financial
Officer and Treasurer
The foregoing Registration Rights
Agreement is hereby confirmed and
accepted as of the date first above
written.
CONEXANT SYSTEMS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Treasurer
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ANNEX A
MINDSPEED TECHNOLOGIES, INC.
FORM OF SELLING SECURITYHOLDER NOTICE AND QUESTIONNAIRE
The undersigned is the beneficial holder of warrants (the
"Warrants") to purchase shares of common stock, par value $.01 per share,
together with the associated preferred share purchase rights (the "Common
Stock"), of Mindspeed Technologies, Inc., a Delaware corporation (the
"Company"), or the Common Stock issuable upon exercise of the Warrants. The
Warrants and the Common Stock issuable upon exercise of the Warrant are referred
to, collectively, as the "Registrable Securities". The undersigned understands
that the Company has filed or intends to file with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (the "Shelf
Registration Statement") for the registration and resale under Rule 415 of the
Securities Act of 1933, as amended (the "Securities Act"), of the Registrable
Securities in accordance with the terms of the Registration Rights Agreement
dated as of June 27, 2003 (the "Registration Rights Agreement") between the
Company and Conexant Systems, Inc., a Delaware corporation. A copy of the
Registration Rights Agreement is available from the Company upon request at the
address set forth below. All capitalized terms not otherwise defined herein have
the meaning ascribed thereto in the Registration Rights Agreement.
Each beneficial owner of Registrable Securities is entitled to
the benefits of the Registration Rights Agreement. In order to sell or otherwise
dispose of any Registrable Securities pursuant to the Shelf Registration
Statement, a beneficial owner of Registrable Securities generally will be
required to be named as a selling securityholder in the related prospectus,
deliver a prospectus to purchasers of Registrable Securities and be bound by
those provisions of the Registration Rights Agreement applicable to such
beneficial owner (including certain indemnification provisions, as described
below). Beneficial owners are encouraged to complete and deliver this Notice and
Questionnaire prior to the effectiveness of the Shelf Registration Statement so
that such beneficial owners may be named as selling securityholders in the
related prospectus at the time of effectiveness.
Certain legal consequences arise from being named as a selling
securityholder in the Shelf Registration Statement and the related prospectus.
Accordingly, holders and beneficial owners of Registrable Securities are advised
to consult their own securities law counsel regarding the consequences of being
named or not being named as a selling securityholder in the Shelf Registration
Statement and the related prospectus.
NOTICE
The undersigned beneficial owner (the "Selling
Securityholder") of Registrable Securities hereby gives notice to the Company of
its intention to sell or otherwise dispose of Registrable Securities
beneficially owned by it and listed below in Item 3 (unless otherwise specified
under Item 3) pursuant to the Shelf Registration Statement. The undersigned, by
signing and returning this Notice and Questionnaire, understands that it will be
bound by the terms and conditions of this Notice and Questionnaire and the
Registration Rights Agreement.
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The undersigned hereby provides the following information to
the Company and represents and warrants that such information is accurate and
complete:
QUESTIONNAIRE
1. (a) Full Legal Name of Selling Securityholder:
______________________________________________________________
(b) Full Legal Name of Registered Holder (if not the same as (a)
above) through which Registrable Securities listed in (3)
below are held:
______________________________________________________________
(c) Full Legal Name of DTC Participant (if applicable and if not
the same as (b) above) through which Registrable Securities
listed in (3) below are held:
______________________________________________________________
2. Address for Notices to Selling Securityholder:
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
Telephone:
___________________________________________________________
Fax:
_________________________________________________________________
Contact Person:
_______________________________________________________
3. Beneficial Ownership of Registrable Securities:
(a) Type and Principal Amount of Registrable Securities
beneficially owned:
______________________________________________________________
______________________________________________________________
(b) CUSIP No(s). of Registrable Securities beneficially owned:
______________________________________________________________
______________________________________________________________
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4. Beneficial Ownership of the Company's securities owned by the Selling
Securityholder:
Except as set forth below in this Item (4), the undersigned is not the
beneficial or registered owner of any "Other Securities," defined as
securities of the Company other than the Registrable Securities listed
above in Item (3).
(a) Type and Amount of Other Securities beneficially owned by the
Selling Securityholder:
______________________________________________________________
______________________________________________________________
(b) CUSIP No(s). of such Other Securities beneficially owned:
______________________________________________________________
______________________________________________________________
5. Relationship with the Company:
Except as set forth below, neither the undersigned nor any of its
affiliates, officers, directors or principal equityholders (5% or more)
has held any position or office or has had any other material
relationship with the Company (or its predecessors or affiliates)
during the past three years.
State any exceptions here:
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
6. Plan of Distribution:
Except as set forth below, the undersigned (including its donees or
pledgees) intends to distribute the Registrable Securities listed above
in Item (3) pursuant to the Shelf Registration Statement only as
follows (if at all): Such Registrable Securities may be sold from time
to time directly by the undersigned or alternatively, through
underwriters, broker-dealers or agents. If the Registrable Securities
are sold through underwriters or broker-dealers, the Selling
Securityholder will be responsible for underwriting discounts or
commissions or agent's commissions. Such Registrable Securities may be
sold in one or more transactions at fixed prices, at prevailing market
prices at the time of sale, at varying prices determined at the time of
sale, or at negotiated prices. Such sales may be effected in
transactions (which may involve block transactions) (i) on any national
securities exchange or quotation service on which the Registrable
Securities may be listed or quoted at the time of sale, (ii) in the
over-the-counter market, (iii) in transactions otherwise than on such
exchanges or services or in the over-the-counter market, or (iv)
through the writing of options. In connection with sales of the
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Registrable Securities or otherwise, the undersigned may enter into
hedging transactions with broker-dealers, which may in turn engage in
short sales of the Registrable Securities and deliver Registrable
Securities to close out such short positions, or loan or pledge
Registrable Securities to broker-dealers that in turn may sell such
securities.
State any exceptions here:
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
The undersigned acknowledges that it understands its
obligation to comply with the provisions of the Securities Exchange Act of 1934,
as amended, and the rules thereunder relating to stock manipulation,
particularly Regulation M thereunder (or any successor rules or regulations), in
connection with any offering of Registrable Securities pursuant to the Shelf
Registration Statement. The undersigned agrees that neither it nor any person
acting on its behalf will engage in any transaction in violation of such
provisions.
The Selling Securityholder hereby acknowledges its obligations
under the Registration Rights Agreement to indemnify and hold harmless certain
persons as set forth therein.
Pursuant to the Registration Rights Agreement, the Company has
agreed under certain circumstances to indemnify the Selling Securityholder
against certain liabilities.
In accordance with the undersigned's obligation under the
Registration Rights Agreement to provide such information as may be required by
law for inclusion in the Shelf Registration Statement, the undersigned agrees to
promptly notify the Company of any inaccuracies or changes in the information
provided herein that may occur subsequent to the date hereof at any time while
the Shelf Registration Statement remains effective. All notices hereunder and
pursuant to the Registration Rights Agreement shall be made in writing at the
address set forth below.
By signing below, the undersigned consents to the disclosure
of the information contained herein in its answers to items (1) through (6)
above and the inclusion of such information in the Shelf Registration Statement
and the related prospectus. The undersigned understands that such information
will be relied upon by the Company in connection with the preparation or
amendment of the Shelf Registration Statement and the related prospectus.
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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:
Beneficial Owner
By:___________________________________
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND
QUESTIONNAIRE TO:
Mindspeed Technologies, Inc.
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Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Senior Vice President, Chief Financial Officer and Treasurer
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