EXHIBIT 99.4
[Draft--8/9/99]
BENCHMARK ELECTRONICS, INC.
6% Convertible Subordinated Notes due 2006
REGISTRATION AGREEMENT
New York, New York
August 9, 1999
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇▇▇ Securities Inc.
As Representatives of the Initial Purchasers Named in
Schedule I to the Purchase Agreement (as defined below)
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Benchmark Electronics, Inc., a Texas corporation (the "Company"), proposes
to issue and sell (such issuance and sale, the "Initial Placement") to the
several parties named in Schedule I to the Purchase Agreement (the "Initial
Purchasers") for whom you (the "Representatives") are acting as representatives,
upon the terms set forth in a purchase agreement dated August 9, 1999 (the
"Purchase Agreement"), $75,000,000 aggregate principal amount (plus up to an
additional $11,250,000 aggregate principal amount to cover over-allotments, if
any) of its 6% Convertible Subordinated Notes due 2006 (the "Securities"). The
Securities will be convertible into shares of common stock, par value $.10 per
share, of the Company at the conversion price set forth in the Offering
Memorandum (as defined herein), as the same may be adjusted from time to time
pursuant to the Indenture referred to below. As an inducement to you to enter
into the Purchase Agreement and in satisfaction of a condition to your
obligations thereunder, the Company agrees with you, (i) for your benefit and
(ii) for the benefit of the holders from time to time of the Securities and the
Common Stock issuable upon conversion of the Securities (including you), as
follows:
1. DEFINITIONS. Capitalized terms used herein without definition shall
have the respective meanings set forth in the Purchase Agreement. As used in
this Agreement, the following capitalized terms shall have the following
meanings:
"ACT" means the Securities Act of 1933, as amended, and the rules and
regulations of the SEC promulgated thereunder.
"AFFILIATE" of any specified person means any other person, directly or
indirectly, controlling or controlled by or under direct or indirect common
control with such specified person. For the purposes of this definition,
"control" (including, with correlative meanings, the terms "controlling",
"controlled by" and "under common control with"), as used with respect to any
person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of such person,
whether through the ownership of voting securities or by agreement or otherwise.
"BUSINESS DAY" has the meaning set forth in the Indenture.
1
"CLOSING DATE" means August 13, 1999.
"COMMON STOCK" means the common stock, par value $.10 per share, of the
Company, as it exists on the date of this Agreement and any other shares of
capital stock or other securities of the Company into which such Common Stock
may be reclassified or changed, together with any and all other securities which
may from time to time be issuable upon conversion of Securities.
"DAMAGES PAYMENT DATE" means, with respect to the Securities or the Common
Stock issuable upon conversion thereof, as applicable, each Interest Payment
Date; and in the event that any Security, or portion thereof, is called for
redemption or surrendered for purchase by the Company and not withdrawn pursuant
to a Designated Event Offer (as defined in the Indenture), a Provisional
Redemption (as defined in the Indenture) or a Special Event Redemption (as
defined in the Indenture), the relevant redemption date, Designated Event
Payment Date (as defined in the Indenture), Provisional Redemption Date (as
defined in the Indenture) or Special Redemption Date (as defined in the
Indenture) as the case may be, shall also be a Damages Payment Date with respect
to such Security, or portion thereof, unless the Indenture provides that accrued
and unpaid interest on the Security (or portion thereof) to be redeemed or
repurchased, as the case may be, is to be paid to the person who was the Holder
thereof on a record date prior to such redemption date, Provisional Redemption
Date, Special Redemption Date or Designated Event Payment Date, as the case may
be, in which case the Damages Payment Date shall be the date on which interest
is payable to such Record Holder.
"DEFAULT RATE" has the meaning set forth in the Indenture.
"DTC" has the meaning set forth in Section 3(k) hereof.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the SEC promulgated thereunder.
"FINAL MATURITY DATE" means August 15, 2006.
"HOLDER" means a person who is a holder or beneficial owner (including the
Initial Purchasers) of any Securities or shares of Common Stock issued upon
conversion of Securities; provided that, unless otherwise expressly stated
herein, only registered holders of Securities or Common Stock issued on
conversion thereof shall be counted for purposes of calculating any proportion
of holders entitled to take any action or give notice pursuant to this
Agreement.
"INDENTURE" means the Indenture relating to the Securities dated as of
August 13, 1999, between the Company and ▇▇▇▇▇▇ Trust Company of New York, as
trustee, as the same may be amended from time to time in accordance with the
terms thereof.
"INITIAL PLACEMENT" has the meaning set forth in the preamble hereto.
"INITIAL PURCHASERS" has the meaning set forth in the preamble hereto.
"INTEREST PAYMENT DATE" shall mean each August 15 and February 15.
"LIQUIDATED DAMAGES" has the meaning set forth in Section 2(e) hereof.
2
"MAJORITY HOLDERS" means the Holders of a majority of the then outstanding
aggregate principal amount of Securities registered under a Shelf Registration
Statement; PROVIDED that Holders of Common Stock issued upon conversion of
Securities shall be deemed to be Holders of the aggregate principal amount of
Securities from which such Common Stock was converted; and provided, further,
that Securities or Common Stock which have been sold or otherwise transferred
pursuant to the Shelf Registration Statement shall not be included in the
calculation of Majority Holders.
"MAJORITY UNDERWRITING HOLDERS" means, with respect to any Underwritten
Offering, the Holders of a majority of the then outstanding aggregate principal
amount of Securities registered under any Shelf Registration Statement whose
Securities are or are to be included in such Underwritten Offering; provided
that Holders of Common Stock issued upon conversion of Securities should be
deemed to be Holders of the aggregate principal amount of Securities from which
such Common Stock was converted.
"MANAGING UNDERWRITERS" means the Underwriter or Underwriters that shall
administer an Underwritten Offering.
"NASD" has the meaning set forth in Section 3(i) hereof.
"NOTICE AND QUESTIONNAIRE" means a Notice of Registration Statement and
Selling Securityholder Questionnaire substantially in the form of Exhibit A
hereto.
"OFFERING MEMORANDUM" means the Final Memorandum as defined in the
Purchase Agreement.
"PERSON" and "PERSON" have the meaning set forth in the Indenture.
"PROSPECTUS" means the prospectus included in any Shelf Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Act), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Securities or Common Stock issuable upon
conversion thereof covered by such Shelf Registration Statement, and all
amendments and supplements to such prospectus, including all documents
incorporated or deemed to be incorporated by reference in such prospectus.
"PURCHASE AGREEMENT" has the meaning set forth in the preamble hereto.
"RECORD HOLDER" means (i) with respect to any Damages Payment Date which
occurs on an Interest Payment Date, each person who is registered on the books
of the registrar as the holder of Securities at the close of business on the
record date with respect to such Interest Payment Date and (ii) with respect to
any Damages Payment Date relating to the Common Stock issued upon conversion
thereof, each person who is a holder of record of such Common Stock fifteen days
prior to the Damages Payment Date.
"REGISTRATION DEFAULT" has the meaning set forth in Section 2(e) hereof.
"REPRESENTATIVES" has the meaning set forth in the preamble thereto.
"RULE 144" means Rule 144 (or any successor provision) under the Act.
"SEC" means the Securities and Exchange Commission.
3
"SECURITIES" has the meaning set forth in the preamble hereto.
"SHELF REGISTRATION" means a registration effected pursuant to Section 2
hereof.
"SHELF REGISTRATION PERIOD" has the meaning set forth in Section 2(c)
hereof.
"SHELF REGISTRATION STATEMENT" means a "shelf" registration statement of
the Company pursuant to the provisions of Section 2 hereof which covers all of
the Securities and the Common Stock issuable upon conversion thereof, as
applicable, on Form S-3 or on another appropriate form for an offering to be
made on a delayed or continuous basis pursuant to Rule 415 under the Act, or any
similar rule that may be adopted by the SEC, and all amendments and supplements
to such registration statement, including post-effective amendments, in each
case including the Prospectus contained therein, all exhibits thereto and all
documents incorporated or deemed to be incorporated by reference therein.
"SUSPENSION PERIOD" has the meaning set forth in Section 2(d) hereof.
"TRANSFER RESTRICTED SECURITIES" means each Security and each share of
Common Stock issued upon conversion thereof until the date on which such
Security or share of Common Stock, as the case may be, (i) has been transferred
pursuant to the Shelf Registration Statement or another registration statement
covering such Security or share of Common Stock which has been filed with the
SEC pursuant to the Act, in either case after such registration statement has
become effective and while such registration statement is effective under the
Act, (ii) has been transferred pursuant to Rule 144 under the Act (or any
similar provision then in force), or (iii) may be sold or transferred pursuant
to Rule 144(k) under the Act (or any successor provision then in force).
"TRUSTEE" means the trustee with respect to the Securities under the
Indenture.
"UNDERWRITER" means any underwriter of Securities or Common Stock issuable
upon conversion thereof in connection with an offering thereof under a Shelf
Registration Statement.
"UNDERWRITTEN OFFERING" means an offering in which the Securities or
Common Stock issued upon conversion thereof are sold to an Underwriter or with
the assistance of an Underwriter for reoffering to the public.
All references in this Agreement to financial statements and schedules and
other information which is "contained", "included", or "stated" in the Shelf
Registration Statement, any preliminary Prospectus or Prospectus (and all other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
or deemed to be incorporated by reference in such Shelf Registration Statement,
preliminary Prospectus or Prospectus, as the case may be; and all references in
this Agreement to amendments or supplements to the Shelf Registration Statement,
any preliminary Prospectus or Prospectus shall be deemed to mean and include the
filing of any document under the Exchange Act, after the date of such Shelf
Registration Statement, preliminary Prospectus or Prospectus, as the case may
be, which is incorporated or deemed to be incorporated by reference therein.
4
2. SHELF REGISTRATION STATEMENT.
(a) The Company shall prepare and, not later than 90 days following the
Closing Date, shall file with the SEC a Shelf Registration Statement with
respect to resales of the Securities and the Common Stock issuable upon
conversion thereof by the Holders from time to time in accordance with the
methods of distribution elected by such Holders and set forth in such Shelf
Registration Statement and thereafter shall use its reasonable best efforts to
cause such Shelf Registration Statement to be declared effective under the Act
within 150 days after the Closing Date; provided that if any Securities are
issued upon exercise of the over-allotment option granted to the Initial
Purchasers in the Purchase Agreement and the date on which such Securities are
issued occurs after the Closing Date, the Company will take such steps, prior to
the effective date of the Shelf Registration Statement, to ensure that such
Securities and Common Stock issuable upon conversion thereof are included in the
Shelf Registration Statement on the same terms as the Securities issued on the
Closing Date. The Company shall supplement or amend the Shelf Registration
Statement if required by the rules, regulations or instructions applicable to
the registration form used by the Company for the Shelf Registration Statement,
if required by the Act, the Exchange Act or the SEC.
(b) (1) Not less than 30 calendar days prior to the effectiveness of the
Shelf Registration Statement, the Company shall mail the Notice and
Questionnaire to the Holders of Securities and Common Stock issued upon
conversion thereof. No Holder shall be entitled to be named as a selling
securityholder in the Shelf Registration Statement, and no Holder shall be
entitled to use the Prospectus forming a part thereof for resales of Securities
or Common Stock issued upon conversion thereof at any time, unless such Holder
has returned a completed and signed Notice and Questionnaire to the Company by
the deadline for responses set forth therein; PROVIDED, HOWEVER, that Holders of
Securities or Common Stock issued upon conversion thereof shall have at least 20
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.
(2) After the Shelf Registration Statement has become effective, the
Company shall, upon the request of any Holder of Securities or Common Stock
issued or issuable upon conversion thereof that has not returned a completed
Notice and Questionnaire, 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
Securities or Common Stock issued or issuable upon conversion thereof until such
Holder has returned a completed and signed Notice and Questionnaire to the
Company, whereupon the Company will be required to take such action.
(c) The Company shall keep the Shelf Registration Statement continuously
effective under the Act in order to permit the Prospectus forming part thereof
to be usable by all Holders until the earliest of (i) the second anniversary of
the Closing Date or, if later, the second anniversary of the last date on which
any Securities are issued upon exercise of the Initial Purchasers'
over-allotment option, (ii) the date on which all the Securities and Common
Stock issued or issuable upon conversion thereof may be sold by non-affiliates
("affiliates" for such purpose having the meaning set forth in Rule 144) of the
Company pursuant to paragraph (k) of Rule 144 (or any successor provision)
promulgated by the SEC under the Act, (iii) the date as of which all the
Securities and Common Stock issued or issuable upon conversion thereof have been
transferred pursuant to Rule 144 under the Securities Act (or any similar
provision then in force) and (iv) such date as of which all the Securities and
the Common Stock issued or issuable upon conversion thereof have been sold
pursuant to the Shelf Registration Statement (in
5
any such case, such period being called the "Shelf Registration Period"). The
Company will, subject to Section 2(d), prepare and file with the SEC such
amendments and post-effective amendments to the Shelf Registration Statement as
may be necessary to keep the Shelf Registration Statement continuously effective
for the Shelf Registration Period; subject to Section 2(d), cause the related
Prospectus to be supplemented by any required supplement, and as so supplemented
to be filed pursuant to Rule 424 (or any similar provisions then in force) under
the Act; and, comply in all material respects with the provisions of the Act
with respect to the disposition of all securities covered by the Shelf
Registration Statement during the applicable period in accordance with the
intended methods of disposition by the sellers thereof set forth in such Shelf
Registration Statement as so amended or such Prospectus as so supplemented.
(d) The Company may suspend the use of the Prospectus for a period not to
exceed 30 days in any three-month period or for three periods not to exceed an
aggregate of 90 days in any twelve-month period (the "Suspension Period") for
valid business reasons, to be determined by the Company in its sole reasonable
judgment (not including avoidance of the Company's obligations hereunder),
including, without limitation, the acquisition or divestiture of assets, public
filings with the SEC, pending corporate developments and similar events;
provided that the Company promptly thereafter complies with the requirements of
Section 3(j) hereof, if applicable; provided, that the existence of a Suspension
Period will not prevent the occurrence of a Registration Default or otherwise
limit the obligation of the Company to pay Liquidated Damages. The Company shall
provide notice to the Holders of a Suspension Period as required under Section
3(c)(1)(iv) hereof.
(e) If (i) the Shelf Registration Statement is not filed with the SEC on
or prior to 90 days after the Closing Date, (ii) the Shelf Registration
Statement has not been declared effective by the SEC within 150 days after the
Closing Date, or (iii) the Shelf Registration Statement is filed and declared
effective but shall thereafter cease to be effective (without being succeeded
immediately by a replacement shelf registration statement filed and declared
effective) or usable (including as a result of a Suspension Period) for the
offer and sale of Transfer Restricted Securities for a period of time (including
any Suspension Period) which shall exceed 60 days in the aggregate in any
twelve-month period during the period beginning on the Closing Date and ending
on the second anniversary of the Closing Date or, if later, the second
anniversary of the last date on which any Securities are issued upon exercise of
the Initial Purchasers' over-allotment option (each such event referred to in
clauses (i) through (iii), a "Registration Default"), the Company will pay
liquidated damages ("Liquidated Damages") to each Holder of Transfer Restricted
Securities who has complied with such Holder's obligations under this Agreement.
The amount of Liquidated Damages payable during any period in which a
Registration Default has occurred and is continuing is the amount which is equal
to one-quarter of one percent (25 basis points) per annum per $1,000 principal
amount of Securities and $2.50 per annum per 24.875622 shares of Common Stock
(subject to adjustment in the event of a stock split, stock recombination, stock
dividend and the like) constituting Transfer Restricted Securities for the first
90 days during which a Registration Default has occurred and is continuing and
one-half of one percent (50 basis points) per annum per $1,000 principal amount
of Securities and $5.00 per annum per 24.875622 shares of Common Stock (subject
to adjustment as set forth above) constituting Transfer Restricted Securities
for any additional days during which a Registration Default has occurred and is
continuing (in each case subject to further adjustment from time to time in the
event of a stock split, stock recombination, stock dividend and the like), it
being understood that all calculations pursuant to this and the preceding
sentence shall be carried out to five decimals. Following the cure of all
6
Registration Defaults, Liquidated Damages will cease to accrue with respect to
such Registration Default. All accrued Liquidated Damages shall be paid by wire
transfer of immediately available funds or by federal funds check by the Company
on each Damages Payment Date and Liquidated Damages will be calculated on the
basis of a 360-day year consisting of twelve 30-day months. In the event that
any Liquidated Damages are not paid when due, then to the extent permitted by
law, such overdue Liquidated Damages, if any, shall bear interest until paid at
the Default Rate, compounded semi-annually. The parties hereto agree that the
Liquidated Damages provided for in this Section 2(e) constitute a reasonable
estimate of the damages that may be incurred by Holders by reason of a
Registration Default.
(f) All of the Company's obligations (including, without limitation, the
obligation to pay Liquidated Damages) set forth in the preceding paragraph which
are outstanding or exist with respect to any Transfer Restricted Security at the
time such security ceases to be a Transfer Restricted Security shall survive
until such time as all such obligations with respect to such security shall have
been satisfied in full.
(g) Immediately upon the occurrence or the termination of a Registration
Default, the Company shall give the Trustee, in the case of notice with respect
to the Securities, and the transfer and paying agent for the Common Stock, in
the case of notice with respect to Common Stock issued or issuable upon
conversion thereof, notice of such commencement or termination, of the
obligation to pay Liquidated Damages with regard to the Securities and Common
Stock and the amount thereof and of the event giving rise to such commencement
or termination (such notice to be contained in an Officers' Certificate (as such
term is defined in the Indenture)), and prior to receipt of such Officers'
Certificate the Trustee and such transfer and paying agent shall be entitled to
assume that no such commencement or termination has occurred, as the case may
be.
(h) All Securities which are redeemed, purchased or otherwise acquired by
the Company or any of its subsidiaries or affiliates (as defined in Rule 144 (or
any successor provision) under the Act) prior to the Final Maturity Date shall
be delivered to the Trustee for cancellation and the Company may not hold or
resell such Securities or issue any new Securities to replace any such
Securities or any Securities that any Holder has converted pursuant to the
Indenture. All shares of Common Stock issued upon conversion of the Securities
which are repurchased or otherwise acquired by the Company or any of its
subsidiaries or affiliates (as defined in Rule 144 (or any successor provision)
under the Act) at any time while such shares are "restricted securities" within
the meaning of Rule 144 shall not be resold or otherwise transferred except
pursuant to a registration statement which has been declared effective under the
Act.
3. REGISTRATION PROCEDURES. In connection with any Shelf Registration
Statement, the following provisions shall apply:
(a) The Company shall furnish to you, prior to the filing thereof
with the SEC, a copy of any Shelf Registration Statement, and each
amendment thereof (excluding amendments caused by the filing by the
Company with the SEC of a report required by the Exchange Act), a copy of
any Prospectus, 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 SEC, such comments as ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ Inc. reasonably may propose. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. shall
promptly furnish to the Company any comments it may have to such documents
mentioned in the foregoing sentence.
7
(b) The Company shall ensure that (i) any Shelf Registration
Statement and any amendment thereto and any Prospectus forming part
thereof and any amendment or supplement thereto comply in all material
respects with the Act and the 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 include an untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in light of the circumstances under which they
were made, not misleading; PROVIDED that the Company makes no
representation or agreement with respect to information with respect to
you, any Underwriter or any Holder required to be included in any Shelf
Registration or Prospectus pursuant to the Act or the rules and
regulations thereunder and which information is included therein in
reliance upon and in conformity with information furnished to the Company
in writing by you, any Underwriter or any such Holder.
(c) (1) The Company, as promptly as reasonably practicable, shall
advise you and each Holder that has returned a completed and signed Notice
and Questionnaire to the Company and, if requested by you or any such
Holder, confirm such advice in writing:
(i) when a Shelf Registration Statement and any amendment
thereto has been filed with the SEC and when the Shelf Registration
Statement or any post-effective amendment thereto has become
effective;
(ii) of any request by the SEC for amendments or supplements
to the Shelf Registration Statement or the Prospectus or for
additional information;
(iii) of the determination by the Company that a
post-effective amendment to the Shelf Registration Statement would
be appropriate; and
(iv) of the commencement or termination of any Suspension
Period.
(2) The Company shall advise you and each Holder that has
returned a completed and signed Notice and Questionnaire to the Company
and, if requested by you or any such Holder, confirm such advice in
writing:
(i) of the issuance by the SEC of any stop order suspending
the effectiveness of the Shelf Registration Statement or the
initiation of any proceedings for that purpose;
(ii) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Securities
included in any Shelf Registration Statement for sale in any
jurisdiction or the initiation or threat of any proceeding for such
purpose; and
(iii) of the suspension of the use of the Prospectus pursuant
to Section 2(d) hereof or of the happening of any event that
requires the making of any changes in the Shelf Registration
Statement or the
8
Prospectus so that, as of such date, the statements therein are not
misleading and the Shelf Registration Statement or the Prospectus,
as the case may be, does not include 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 advice shall be accompanied by an
instruction to suspend the use of the Prospectus until the requisite
changes have been made).
(d) The Company shall use its reasonable best efforts to obtain the
withdrawal of any order suspending the effectiveness of any Shelf
Registration Statement or the lifting of any suspension of the
qualification (or exemption from qualification) of any of the Securities
for offer or sale in any jurisdiction at the earliest possible time.
(e) The Company shall furnish to each Holder of Securities and the
Common Stock issued upon conversion thereof included within the coverage
of any Shelf Registration Statement, without charge, at least one copy of
such Shelf Registration Statement and any post-effective amendment
thereto, including financial statements and schedules, and, if the Holder
so requests in writing, all exhibits (including those incorporated by
reference).
(f) The Company shall, during the Shelf Registration Period, deliver
to each Holder of Securities or the Common Stock issued upon conversion
thereof included within the coverage of any Shelf Registration Statement,
without charge, as many copies of the Prospectus (including each
preliminary Prospectus) included in such Shelf Registration Statement and
any amendment or supplement thereto as such Holder may reasonably request;
and, except during the continuance of any Suspension Period, the Company
consents to the use of the Prospectus or any amendment or supplement
thereto by each of the selling Holders in connection with the offering and
sale of the Securities or the Common Stock issued upon conversion thereof
covered by the Prospectus or any amendment or supplement thereto.
(g) Prior to any offering of Securities or the Common Stock issued
upon conversion thereof pursuant to any Shelf Registration Statement, the
Company shall register or qualify or cooperate with the Holders of
Securities and the Common Stock issued upon conversion thereof included
therein and their respective counsel in connection with the registration
or qualification (or exemption from such registration or qualification) of
such Securities or Common Stock for offer and sale, as the case may be,
under the securities or blue sky laws of such jurisdictions as any such
Holders reasonably request in writing and do any and all other acts or
things necessary or advisable to enable the offer and sale in such
jurisdictions of the Securities and the Common Stock issued upon
conversion thereof covered by such Shelf Registration Statement; PROVIDED,
HOWEVER, that the Company will not be required to (A) qualify generally to
do business in any jurisdiction where it is not then so qualified or to
(B) take any action which would subject it to general service of process
or to taxation in any such jurisdiction where it is not then so subject.
(h) The Company shall cooperate with the Holders to facilitate the
timely preparation and delivery of certificates representing Securities or
the Common Stock issued upon conversion thereof to be sold pursuant to any
Shelf
9
Registration Statement free of any restrictive legends and in such
denominations and registered in such names as Holders may request prior to
sales of Securities or the Common Stock issued upon conversion thereof
pursuant to such Shelf Registration Statement.
(i) Subject to the exceptions contained in (A) and (B) of subsection
(g) hereof, the Company shall use its best efforts to cause the Securities
and Common Stock issued upon conversion thereof covered by the applicable
Shelf Registration Statement to be registered with or approved by such
other federal, state and local governmental agencies or authorities, and
self-regulatory organizations in the United States as may be necessary to
enable the Holders to consummate the disposition of such Securities and
Common Stock issued upon conversion thereof as contemplated by the Shelf
Registration Statement; without limitation to the foregoing, the Company
shall make all filings and provide all such information as may be required
by the National Association of Securities Dealers, Inc. (the "NASD") in
connection with the offering under the Shelf Registration Statement of the
Securities and Common Stock issued upon conversion thereof (including,
without limitation, such as may be required by NASD Rule 2710 or 2720),
and shall cooperate with each Holder in connection with any filings
required to be made with the NASD by such Holder in that regard.
(j) Upon the occurrence of any event contemplated by paragraph
3(c)(2)(iii) above and subject to Section 3(a) hereof, the Company shall
promptly prepare and file with the SEC a post-effective amendment to any
Shelf Registration Statement or an amendment or supplement to the related
Prospectus or any document incorporated therein by reference or file a
document which is incorporated or deemed to be incorporated by reference
in such Shelf Registration Statement or Prospectus, as the case may be, so
that, as thereafter delivered to purchasers of the Securities or the
Common Stock issued upon conversion thereof included therein, the Shelf
Registration Statement and the Prospectus, in each case as then amended or
supplemented, will not include an untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary
in order to make the statements therein (in the case of the Prospectus in
light of the circumstances under which they were made) not misleading and
in the case of a post-effective amendment, use its best efforts to cause
it to become effective as promptly as practicable; provided that the
Company's obligations under this paragraph (j) shall be suspended if the
Company has suspended the use of the Prospectus in accordance with Section
2(d) hereof and given notice of such suspension to Holders, it being
understood that the Company's obligations under this Subsection (j) shall
be automatically reinstated at the end of such Suspension Period.
(k) The Company shall use its reasonable best efforts to cause The
Depository Trust Company ("DTC") on the first Business Day following the
effective date of any Shelf Registration Statement hereunder or as soon as
possible thereafter to remove (i) from any existing CUSIP number assigned
to the Securities any designation indicating that the Securities are
"restricted securities", which efforts shall include delivery to DTC of a
letter executed by the Company substantially in the form of Exhibit B
hereto and (ii) any other stop or restriction on DTC's system with respect
to the Securities. In the event the Company is unable to cause DTC to take
actions described in the immediately preceding sentence, the Company shall
take such actions as ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. may
10
reasonably request to provide, as soon as practicable, a CUSIP number for
the Securities registered under such Shelf Registration Statement and to
cause such CUSIP number to be assigned to such Securities (or to the
maximum aggregate principal amount of the Securities to which such number
may be assigned). Upon compliance with the foregoing requirements of this
Section 3(k), the Company shall provide the Trustee with global
certificates for such Securities in a form eligible for deposit with DTC.
(l) The Company shall use its best efforts to comply with all
applicable rules and regulations of the SEC and shall make generally
available to its security holders as soon as practicable but in any event
not later than 15 months after (i) the effective date of the applicable
Shelf Registration Statement, (ii) the effective date of each
post-effective amendment to any Shelf Registration Statement, and (iii)
the date of each filing by the Company with the SEC of an Annual Report on
Form 10-K that is incorporated by reference or deemed to be incorporated
by reference in the Shelf Registration Statement, an earnings statement
satisfying the provisions of Section 11(a) of the Act and Rule 158
promulgated by the SEC thereunder.
(m) The Company shall use its best efforts to cause the Indenture to
be qualified under the TIA (as defined in the Indenture) in a timely
manner.
(n) The Company shall cause all Common Stock issued or issuable upon
conversion of the Securities to be listed on each securities exchange or
quotation system on which the Common Stock is then listed no later than
the date the applicable Shelf Registration Statement is declared effective
and, in connection therewith, to make such filings as may be required
under the Exchange Act and to have such filings declared effective as and
when required thereunder.
(o) The Company may require each Holder of Securities or the Common
Stock issued upon conversion thereof to be sold pursuant to any Shelf
Registration Statement to furnish to the Company such information
regarding the Holder and the distribution of such Securities or Common
Stock sought by the Notice and Questionnaire and such additional
information as may, from time to time, be required by the Act and the
rules and regulations promulgated thereunder, and the obligations of the
Company to any Holder hereunder shall be expressly conditioned on the
compliance of such Holder with such request.
(p) The Company shall, if reasonably requested, use its best efforts
to promptly incorporate in a Prospectus supplement or post-effective
amendment to a Shelf Registration Statement (i) such information as the
Majority Holders provide or, if the Securities or Common Stock are being
sold in an Underwritten Offering, as the Managing Underwriters or the
Majority Underwriting Holders reasonably agree should be included therein
and provide to the Company in writing for inclusion in the Shelf
Registration Statement or Prospectus, and (ii) such information as a
Holder may provide from time to time to the Company in writing for
inclusion in a Prospectus or any Shelf Registration Statement concerning
such Holder and the distribution of such Holder's Securities and Common
Stock and, in either case, shall make all required filings of such
Prospectus supplement or post-effective amendment as soon as practicable
after being notified in writing of the matters to be incorporated in such
Prospectus supplement or post-effective amendment, provided that the
Company shall not be
11
required to take any action under this Section 3(p) that is not, in the
reasonable opinion of counsel for the Company, in compliance with
applicable law.
(q) The Company shall enter into such customary agreements
(including underwriting agreements) and take all other appropriate actions
as may be reasonably requested in order to expedite or facilitate the
registration or the disposition of the Securities or the Common Stock
issued or issuable upon conversion thereof, and in connection therewith,
if an underwriting agreement is entered into, cause the same to contain
indemnification and contribution provisions and procedures no less
favorable than those set forth in Section 5 (or such other reasonable and
customary provisions and procedures acceptable to the Majority
Underwriting Holders and the Managing Underwriters, if any, with respect
to all parties to be indemnified pursuant to Section 5). The plan of
distribution in the Shelf Registration Statement and the Prospectus
included therein shall permit resales of the Securities or Common Stock
issuable upon conversion thereof to be made by selling security holders
through underwriters, brokers and dealers, and shall also include such
other information as ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. may reasonably request.
(r) The Company shall (i) make reasonably available for inspection
by the Holders of Securities and the Common Stock issued upon conversion
thereof registered or to be registered under a Shelf Registration
Statement, any Underwriter participating in any disposition pursuant to
such Shelf Registration Statement, and any 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 its subsidiaries as is customary for due diligence
examinations in connection with public offerings; (ii) cause the Company's
officers, directors and employees to supply all relevant information
reasonably requested by the Holders or any such Underwriter, attorney,
accountant or agent in connection with any such Shelf Registration
Statement as is customary for similar due diligence examinations;
PROVIDED, HOWEVER, that any information that is designated in writing by
the Company, in its sole discretion, as confidential at the time of
delivery of such information shall be kept confidential by the Holders or
any such Underwriter, attorney, accountant or agent, unless disclosure
thereof is made in connection with a court, administrative or regulatory
proceeding or required by law, or such information has become available to
the public generally through the Company or through a third party without
an accompanying obligation of confidentiality; provided, further, that if
the foregoing inspection and information gathering specified in
subsections (i) and (ii) would, in the Company's reasonable judgment,
disrupt the Company's conduct of business, such inspections and
information gathering shall be coordinated on behalf of the Holders and
the other parties entitled thereto by one counsel designated by or on
behalf of the Majority Holders (or, in the case of an Underwritten
Offering, the Majority Underwriting Holders and the Managing
Underwriters); (iii) make such representations and warranties to the
Holders of Securities and the Common Stock issued upon conversion thereof
registered thereunder and the Underwriters, if any, in form, substance and
scope as are customarily made by issuers to Underwriters and covering
matters including, but not limited to, those set forth in the Purchase
Agreement; (iv) 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, if any) addressed
to each selling Holder and the Underwriters, if any, covering such matters
as are customarily covered in opinions requested in public offerings; (v)
obtain "cold comfort" letters
12
and updates thereof from the independent certified public accountants of
the Company (and, if necessary, any other independent certified 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 of Securities and Common Stock issued
upon conversion thereof registered thereunder (provided such Holder
furnishes the accountants with such representations as the accountants
customarily require in similar situations) and the Underwriters, if any,
in customary form and covering matters of the type customarily covered in
"cold comfort" letters in connection with primary underwritten offerings;
and (vi) deliver such documents and certificates as may be reasonably
requested by the Majority Holders or, in the case of an Underwritten
Offering, the Majority Underwriting Holders, and the Managing
Underwriters, if any, including those to evidence compliance with Section
3(j) 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(r) shall be performed at (A) the effectiveness of such Shelf
Registration Statement and each post-effective amendment thereto and (B)
each closing under any underwriting or similar agreement as and to the
extent required thereunder.
(s) Each Holder agrees that, upon receipt of notice of the happening
of an event described in Sections 3(c)(1)(ii) through and including
3(c)(1)(iv) and Sections 3(c)(2)(i) through and including 3(c)(2)(iii),
each Holder shall forthwith discontinue (and shall cause its agents and
representatives to discontinue) disposition of the Securities and the
Common Stock issuable upon conversion thereof and will not resume
disposition of such Securities or the Common Stock until such Holder has
received copies of an amended or supplemented Prospectus contemplated by
Section 3(j) hereof, or until such Holder is advised in writing by the
Company that the use of the Prospectus may be resumed or that the relevant
Suspension Period has been terminated, as the case may be, provided that,
the foregoing shall not prevent the sale, transfer or other disposition of
Securities or Common Stock issuable upon conversion thereof by a Holder in
a transaction which is exempt from, or not subject to, the registration
requirements of the Act, so long as such Holder does not and is not
required to deliver the applicable Prospectus or Shelf Registration
Statement in connection with such sale, transfer or other disposition, as
the case may be; and provided, further, that the provisions of this
paragraph (s) shall not prevent the occurrence of a Registration Default
or otherwise limit the obligation of the Company to pay Liquidated
Damages.
4. REGISTRATION EXPENSES. The Company shall bear all expenses incurred in
connection with the performance of its obligations under Sections 2 and 3 hereof
and shall reimburse the Holders for the reasonable fees and disbursements of one
firm or counsel designated by the Majority Holders to act as counsel for the
Holders in connection therewith. Notwithstanding the provisions of this Section
4, each Holder shall bear the expense of any broker's commission, agency fee or
Underwriter's discount or commission.
5. INDEMNIFICATION AND CONTRIBUTION.
(a) (i) The Company agrees to indemnify and hold harmless each Holder of
Securities and each Holder of Common Stock issued upon conversion thereof
covered by any Shelf Registration Statement (including the Initial Purchasers),
the directors, officers, employees and agents of each such Holder and each
person who controls any such Holder within the meaning of either the Act or the
Exchange Act against any and all
13
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other Federal or
state law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in the Shelf Registration Statement as originally filed or in any
amendment thereof, or in any preliminary Prospectus or Prospectus, or in any
amendment thereof 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, in the light of the
circumstances under which they were made, not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by any of them in connection with investigating or
defending any such loss, claim, damage, liability or action; PROVIDED, HOWEVER,
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon (A) any such
untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information
furnished to the Company by or on behalf of any such Holder or any Initial
Purchaser specifically for inclusion therein, (B) use of a Shelf Registration
Statement or the related Prospectus during a period when a stop order has been
issued in respect of such Shelf Registration or any proceedings for that purpose
have been initiated or use of a Prospectus when use of such Prospectus has been
suspended pursuant to Section 2(d) or Section 3(s); PROVIDED, FURTHER, in each
case, that Holders received prior notice of such stop order, initiation of
proceedings or suspension, or (C) if the Holder fails to deliver a Prospectus,
as then amended or supplemented, provided that the Company shall have delivered
to such Holder such Prospectus, as then amended or supplemented. This indemnity
agreement will be in addition to any liability which the Company may otherwise
have.
(ii) The Company also agrees to indemnify and to contribute to
Losses, as provided in Section 5(d), of any Underwriters of Securities or Common
Stock issued upon conversion thereof registered under a Shelf Registration
Statement, their officers and directors and each person who controls any such
Underwriter within the meaning of either the Act or the Exchange Act on
substantially the same basis as that of the indemnification of the Initial
Purchasers and the selling Holders provided in this Section 5(a) and shall, if
requested by any Holder, enter into an underwriting agreement reflecting such
agreement, as provided in Section 3(q) hereof. This indemnity agreement will be
in addition to any liability which the Company may otherwise have.
(b) Each Holder of Securities or Common Stock issued upon conversion
thereof covered by a Shelf Registration Statement (including the Initial
Purchasers) severally and not jointly agrees to indemnify and hold harmless (i)
the Company, (ii) each of its directors, (iii) each of its officers who signs
such Shelf Registration Statement and (iv) each person who controls the Company
within the meaning of either the Act or the Exchange Act to the same extent as
the foregoing indemnity from the Company to each such Holder, but only with
reference to written information relating to such Holder furnished to the
Company by or on behalf of such Holder specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement will
be in addition to any liability which any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 5 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 5, notify the indemnifying party in writing of the commencement thereof;
but the failure so to
14
notify the indemnifying party (i) will not relieve it from liability under
paragraph (a) or (b) above unless and to the extent it did not otherwise learn
of such action and such failure results in the forfeiture by the indemnifying
party of substantial rights and defenses; and (ii) will not, in any event,
relieve the indemnifying party from any obligations to any indemnified party
other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); PROVIDED, HOWEVER, that such counsel shall be
reasonably satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the indemnified
party in an action, the indemnified party shall have the right to employ
separate counsel (including local counsel), and the indemnifying party shall
bear the reasonable fees, costs and expenses of such separate counsel (and local
counsel) if (i) the use of counsel chosen by the indemnifying party to represent
the indemnified party would present such counsel with a conflict of interest;
(ii) the actual or potential defendants in, or targets of, any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party; (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action; or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. Notwithstanding the foregoing, the Company shall not,
in the connection with any one action or proceeding or separate but
substantially similar or related actions or proceedings in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate counsel (in addition to
one separate local counsel) at any time for the indemnified parties, which firm
or firms (including any local counsel) shall be designated by ▇▇▇▇▇▇▇ ▇▇▇▇▇
Barney Inc. An indemnifying party will not, without the prior written consent of
the indemnified party, which consent will not be unreasonably withheld, settle
or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of such indemnified party from all liability arising out of such claim, action,
suit or proceeding. The Company shall not be liable for any losses, claims,
damages or liabilities by reason of any settlement of any action or proceeding
effected without the Company's prior written consent, which consent will not be
unreasonably withheld.
(d) In the event that the indemnity provided in paragraph (a) or (b) of
this Section 5 is unavailable to or insufficient to hold harmless an indemnified
party for any reason, then each applicable indemnifying party, in lieu of
indemnifying such indemnified party, shall have an obligation to contribute to
the aggregate losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or defending same)
(collectively "Losses"), as incurred, to which such indemnified party may be
subject in such proportion as is appropriate to reflect the relative benefits
received by such indemnifying party, on the one hand, and such indemnified
party, on the other hand, from the Initial Placement and the Shelf Registration
Statement which resulted in such Losses; PROVIDED, HOWEVER, that in no case
shall the Initial Purchasers be responsible, in the aggregate, for any amount in
excess of
15
the purchase discount or commission applicable to the Securities, as set forth
on the cover page of the Offering Memorandum, nor shall any Underwriter be
responsible for any amount in excess of the underwriting discount or commission
applicable to the Securities and Common Stock issued upon conversion thereof
purchased by such Underwriter under the Shelf Registration Statement which
resulted in such Losses. If the allocation provided by the immediately preceding
sentence is unavailable for any reason, the indemnifying party and the
indemnified party shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of such
indemnifying party, on the one hand, and such indemnified party, on the other
hand, in connection with the statements or omissions which resulted in such
Losses as well as any other relevant equitable considerations. Benefits received
by the Company shall be deemed to be equal to the sum of (x) the total net
proceeds from the Initial Placement (before deducting expenses) as set forth on
the cover page of the Offering Memorandum and (y) the total amount of Liquidated
Damages that the Company was not required to pay as a result of registering the
Securities and Common Stock issued upon conversion thereof covered by the Shelf
Registration Statement which resulted in such Losses. Benefits received by the
Initial Purchasers shall be deemed to be equal to the total purchase discounts
and commissions as set forth on the cover page of the Offering Memorandum, and
benefits received by any other Holders shall be deemed to be equal to the value
of receiving Securities or the Common Stock issuable upon conversion thereof
registered under the Act. Benefits received by any Underwriter shall be deemed
to be equal to the total underwriting discounts and commissions, as set forth on
the cover page of the Prospectus forming a part of the Shelf Registration
Statement (or the applicable Prospectus supplement) which resulted in such
Losses. Relative fault shall be determined by reference to whether any untrue
statement or omission or alleged untrue statement or omission relates to
information provided by the indemnifying party, on the one hand, or by the
indemnified party, on the other hand. The parties agree that it would not be
just and equitable if contribution were determined by pro rata allocation or any
other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
paragraph (d), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 5, each person who controls a Holder within the meaning of either
the Act or the Exchange Act and each director, officer, employee and agent of
such Holder shall have the same rights to contribution as such Holder, and each
person who controls the Company within the meaning of either the Act or the
Exchange Act, each officer of the Company who shall have signed the Shelf
Registration Statement and each director of the Company shall have the same
rights to contribution as the Company, and each person who controls an
Underwriter within the meaning of either the Act or the Exchange Act and each
officer and director of each Underwriter shall have the same rights to
contribution as such Underwriter, subject in each case to the applicable terms
and conditions of this paragraph (d).
(e) The provisions of this Section 5 will remain in full force and effect,
regardless of any investigation made by or on behalf of any Holder, any
Underwriter or the Company or any of the officers, directors or controlling
persons referred to in Section 5 hereof, and will survive the sale by a Holder
of Securities or shares of Common Stock covered by a Shelf Registration
Statement.
6. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. The Company has not, as of the date
hereof, entered into nor shall it, on or after the date hereof, enter into, any
agreement with respect
16
to its securities that is inconsistent with the rights granted to the Holders
herein or otherwise conflicts with the provisions hereof.
(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
Majority Holders; PROVIDED that with respect to any matter that directly or
indirectly affects the rights of the Initial Purchasers hereunder, the Company
shall obtain the written consent of each of the Initial Purchasers against which
such amendment, qualification, supplement, waiver or consent is to be effective.
Notwithstanding the foregoing (except the foregoing proviso), a waiver or
consent to departure from the provisions hereof with respect to a matter that
relates exclusively to the rights of Holders whose Securities or Common Stock
are being sold pursuant to a Shelf Registration Statement and that does not
directly or indirectly affect the rights of other Holders may be given by the
Majority Holders, determined on the basis of Securities or Common Stock issued
upon conversion thereof being sold rather than registered under such Shelf
Registration Statement.
(c) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telecopier, or air courier guaranteeing overnight delivery:
(1) if to you, initially at the address set forth in the Purchase
Agreement;
(2) if to any other Holder, at the most current address given by
such Holder to the Company in accordance with the provisions of this
Section 6(c), which address initially is, with respect to each Holder, the
address of such Holder maintained by the Registrar under the Indenture or,
in the case of Common Stock, the address maintained by the registrar of
the Common Stock, with a copy in like manner to ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.;
and
(3) if to the Company, initially at its address set forth in the
Purchase Agreement.
All such notices and communications shall be deemed to have been duly
given when received, if delivered by hand or air courier, and when sent, if sent
by first-class mail or telecopier.
The Initial Purchasers or the Company by notice to the other may designate
additional or different addresses for subsequent notices or communications.
(d) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties,
including, without the need for an express assignment or any consent by the
Company thereto, subsequent Holders. The Company hereby agrees to extend the
benefits of this Agreement to any Holder and Underwriter and any such Holder and
Underwriter may specifically enforce the provisions of this Agreement as if an
original party hereto. In the event that any other person shall succeed to the
Company under the Indenture as provided in Article VII thereof, then such
successor shall enter into an agreement, in form and substance reasonably
satisfactory to the Initial Purchasers, whereby such successor shall assume all
of the Company's obligations under this Agreement.
17
(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 APPLICABLE TO AGREEMENTS MADE
AND TO BE PERFORMED IN SAID STATE, WITHOUT REGARD, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, TO THE CONFLICTS OF LAW RULES THEREOF.
(h) SEVERABILITY. In the event that any one of 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) SECURITIES HELD BY THE COMPANY, ETC. Whenever the consent or approval
of Holders of a specified percentage of principal amount of Securities or the
Common Stock issuable upon conversion thereof is required hereunder, Securities
or the Common Stock issued upon conversion thereof held by the Company or its
Affiliates (other than subsequent Holders of Securities or the Common Stock
issued upon conversion thereof if such subsequent Holders are deemed to be
Affiliates solely by reason of their holdings of such Securities) shall not be
counted in determining whether such consent or approval was given by the Holders
of such required percentage.
18
Please confirm that the foregoing correctly sets forth the agreement
between the Company and you.
Very truly yours,
BENCHMARK ELECTRONICS, INC.
/S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Treasurer
The foregoing Agreement is hereby
confirmed and accepted as of the date first
above written.
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
▇▇▇▇▇ SECURITIES INC.
For themselves and the other Initial
Purchasers named in Schedule I to the
Purchase Agreement.
BY: ▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.
By /S/ ▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Managing Director
19
EXHIBIT A
Benchmark Electronics, Inc.
Notice of Registration Statement
and
Selling Securityholder Questionnaire
Reference is hereby made to the Registration Agreement (the "Registration
Agreement") between Benchmark Electronics, Inc., a Texas corporation (the
"Company"), and the Initial Purchasers named therein. Pursuant to the
Registration Agreement, the Company has filed or will file 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 6% Convertible Subordinated Notes due 2006
(the "Securities"), and the shares of the Company's common stock, par value $.10
per share (the "Common Stock"), issuable upon conversion thereof. A copy of the
Registration Agreement is attached hereto. All capitalized terms not otherwise
defined herein shall have the meanings ascribed thereto in the Registration
Agreement.
Each holder and beneficial owner of Transfer Restricted Securities is
entitled to have its Transfer Restricted Securities included in the Shelf
Registration Statement. In order to have Transfer Restricted 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 following
address, for receipt ON OR BEFORE [DEADLINE FOR RESPONSE]: [NAME AND ADDRESS OF
COUNSEL]. Holders or beneficial owners of Transfer Restricted 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
Transfer Restricted Securities, subject, however, to the Company's obligations
under Section 2(b)(2) of the Registration Agreement.
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 Transfer Restricted 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.
ELECTION
The undersigned (the "Selling Securityholder") hereby elects to include in
the Shelf Registration Statement the Transfer Restricted Securities held or
beneficially owned by it and listed below in Item (3)(b). The undersigned, by
signing and returning this
A-1
Notice and Questionnaire, agrees to be bound with respect to such Transfer
Restricted Securities by the terms and conditions of this Notice and
Questionnaire and the Registration Agreement, including, without limitation, the
indemnification set forth in Section 5 of the Registration Agreement, as if the
undersigned Selling Securityholder were an original party thereto.
QUESTIONNAIRE
(1) (a) Full legal name of Selling Securityholder:
(b) Full legal name of registered holder (if not the same as in (a) above)
of Transfer Restricted Securities listed in (3) below (if the Transfer
Restricted Securities are held through a broker-dealer or other third party and,
as a result, you do not know the legal name of the registered holder, please
complete Item (1)(c) below):
(c) Full legal name of broker-dealer or other third party through which
Transfer Restricted Securities listed in (3) below are held:
(2) Address for notices to Selling Securityholder:
Telephone:
Fax:
Contact Person:
(3) Beneficial ownership of Transfer Restricted Securities.
EXCEPT AS SET FORTH BELOW IN THIS ITEM (3), THE UNDERSIGNED DOES NOT
BENEFICIALLY OWN ANY SECURITIES OR SHARES OF COMMON STOCK WHICH CONSTITUTE
TRANSFER RESTRICTED SECURITIES.
(a) Principal amount of Securities constituting Transfer Restricted
Securities beneficially owned:
Number of shares of Common Stock, if any, constituting Transfer Restricted
Securities (include only shares of Common Stock which have actually been issued,
not shares issuable upon future conversion of Securities):
The undersigned also may be deemed to beneficially own such number of
shares of Common Stock as may be issued from time to time upon conversion of the
Securities listed in Item (3)(a) above.
(b) Principal amount of Securities and number of shares of outstanding
Common Stock constituting Transfer Restricted Securities which the undersigned
wishes to be included in the Shelf Registration Statement:
Unless otherwise indicated in the space provided below, all Securities,
all shares of Common Stock listed in response to Item (3)(a) above, and all
shares of Common Stock issuable upon conversion of the Securities listed in
response to Item (3)(b)above, will be included in the Shelf Registration
Statement. If the undersigned does not wish all
A-2
such Securities or shares of Common Stock to be so included, please indicate
below the number of such shares to be included:
(4) 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 OF ANY SHARES OF COMMON
STOCK OR ANY OTHER SECURITIES OF THE COMPANY, OTHER THAN SECURITIES AND SHARES
OF COMMON STOCK LISTED ABOVE IN ITEM (3).
State any exceptions here:
(5) Relationships with the Company:
EXCEPT AS SET FORTH BELOW, NEITHER THE SELLING SECURITYHOLDER NOR ANY OF
ITS OFFICERS, DIRECTORS OR 5% OR GREATER STOCKHOLDERS 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 SELLING SECURITYHOLDER INTENDS
TO DISTRIBUTE THE TRANSFER RESTRICTED SECURITIES LISTED ABOVE IN ITEM (3) ONLY
AS FOLLOWS (IF AT ALL): SUCH TRANSFER RESTRICTED SECURITIES MAY BE SOLD FROM
TIME TO TIME BY THE UNDERSIGNED SELLING SECURITYHOLDER (I) TO OR THROUGH
UNDERWRITERS, BROKERS OR DEALERS; (II) DIRECTLY TO ONE OR MORE OTHER PURCHASERS;
(III) THROUGH AGENTS ON A BEST-EFFORTS BASIS OR OTHERWISE; OR (IV) THROUGH A
COMBINATION OF ANY SUCH METHODS OF SALE. SUCH TRANSFER RESTRICTED SECURITIES MAY
BE SOLD FROM TIME TO TIME IN ONE OR MORE TRANSACTIONS AT A FIXED PRICE OR
PRICES, WHICH MAY BE CHANGED, AT MARKET PRICES PREVAILING AT THE TIME OF SALE,
AT PRICES RELATED TO SUCH PREVAILING MARKET PRICES, 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 TRANSFER
RESTRICTED 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 TRANSFER RESTRICTED SECURITIES OR
OTHERWISE, THE SELLING SECURITYHOLDER MAY ENTER INTO HEDGING TRANSACTIONS WITH
BROKERS-DEALERS OR OTHERS, WHICH MAY IN TURN ENGAGE IN SHORT SALES OF THE
TRANSFER RESTRICTED SECURITIES IN THE COURSE OF HEDGING THE POSITIONS THEY
ASSUME. THE SELLING SECURITYHOLDER MAY ALSO SELL TRANSFER RESTRICTED SECURITIES
SHORT AND DELIVER TRANSFER RESTRICTED SECURITIES TO CLOSE OUT SUCH SHORT
POSITIONS, OR LOAN OR PLEDGE TRANSFER RESTRICTED SECURITIES TO BROKERS- DEALERS
OR OTHERS THAT IN TURN MAY SELL SUCH SECURITIES. THE SELLING SECURITYHOLDER MAY
PLEDGE OR GRANT A SECURITY INTEREST IN SOME OR ALL OF THE TRANSFER RESTRICTED
SECURITIES OWNED BY IT AND, IF IT DEFAULTS IN THE PERFORMANCE OF ITS SECURED
OBLIGATIONS, THE PLEDGEES OR SECURED PARTIES MAY OFFER AND SELL THE TRANSFER
RESTRICTED SECURITIES FROM TIME TO TIME
A-3
PURSUANT TO THE PROSPECTUS. THE SELLING SECURITYHOLDER ALSO MAY TRANSFER AND
DONATE SHARES IN OTHER CIRCUMSTANCES IN WHICH CASE THE TRANSFEREES, DONEES,
PLEDGEES OR OTHER SUCCESSORS IN INTEREST WILL BE THE SELLING STOCKHOLDERS FOR
PURPOSES OF THE PROSPECTUS. THE SELLING SECURITYHOLDER MAY SELL SHORT THE COMMON
STOCK AND MAY DELIVER THE PROSPECTUS IN CONNECTION WITH SUCH SHORT SALES AND USE
THE SHARES COVERED BY THE PROSPECTUS TO COVER SUCH SHORT SALES.
State any exceptions here:
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 Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder, particularly Regulation M and the prospectus delivery
requirements under the Securities Act.
In the event that the Selling Securityholder transfers all or any portion
of the Transfer Restricted Securities listed in Item (3) above after the date on
which such information is provided to the Company (other than a transaction as a
result of which such securities shall no longer be Transfer Restricted
Securities), the Selling Securityholder agrees to notify the transferees at the
time of the transfer of its rights and obligations under this Notice and
Questionnaire and the Registration Agreement.
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.
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
Agreement shall be made in writing, by hand-delivery, first-class mail, or air
courier guaranteeing overnight delivery as follows:
Benchmark Electronics, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Once this Notice and Questionnaire is executed by the Selling
Securityholder and received by the Company, 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 Transfer Restricted
Securities beneficially owned by such Selling Securityholder and listed in Item
(3)(b) above). This Agreement shall be governed by and construed in accordance
with the internal laws of the State of New York.
A-4
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 Transfer
Restricted Securities).
By:_______________________________________
Name:
Title:
A-5
EXHIBIT B
FORM OF LETTER TO BE PROVIDED BY ISSUER TO
THE DEPOSITORY TRUST COMPANY
The Depository Trust Company
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: 6% Convertible Subordinated Notes due 2006 (the "Securities")
of Benchmark Electronics, Inc.
Ladies and Gentlemen:
Please be advised that the Securities and Exchange Commission has declared
effective a Registration Statement on Form S-3 under the Securities Act of 1933,
as amended, with regard to all of the Securities referenced above. Accordingly,
there is no longer any restriction as to whom such Securities may be sold and
any restrictions on the CUSIP designation are no longer appropriate and may be
removed. I understand that upon receipt of this letter, DTC will remove any stop
or restriction on its system with respect to this issue.
As always, please do not hesitate to call if we can of further assistance.
Very truly yours,
By:_____________________________________
Authorized Officer
B-1