ACQUICOR TECHNOLOGY INC. 8% CONVERTIBLE SENIOR NOTES DUE 2011 REGISTRATION RIGHTS AGREEMENT
Exhibit
4.4
Execution
Version
8%
CONVERTIBLE SENIOR NOTES DUE 2011
December
19, 2006
Acquicor
Technology Inc., a corporation organized under the laws of the State of Delaware
(the “Company”),
proposes to issue to CRT Capital Group LLC and ▇▇▇▇▇▇▇ & Company, LLC (the
“Initial
Purchasers”),
pursuant to the Purchase Agreement, dated December 18, 2006 (the “Purchase
Agreement”),
among
the Initial Purchasers and the Company, $145,000,000 aggregate principal amount
(plus up to an additional $21,750,000 aggregate principal amount) of its 8%
Convertible Senior Notes due 2011 (the “Securities”)
upon
the terms and subject to the conditions set forth in such Purchase Agreement.
The Securities will be convertible into shares of common stock of the Company,
par value $0.0001 per share (the “Common
Stock”)
at the
initial conversion rate of 136.426 shares of Common Stock per each $1,000
principal amount of Securities, subject to adjustment in certain circumstances.
The Securities will be issued pursuant to an Indenture dated as of December
19,
2006 (the “Indenture”),
among
the Company and U.S. Bank National Association as Trustee (the “Trustee”).
As an
inducement to the Initial Purchasers to enter into the Purchase Agreement and
in
satisfaction of conditions to the obligations of the Initial Purchasers
thereunder, the Company agrees with the Initial Purchasers for the benefit
of
Holders (as defined herein) from time to time of the Registrable Securities
(as
defined herein) as follows:
1. Definitions.
Capitalized
terms used herein without definition shall have the meanings ascribed to them
in
the Purchase Agreement. As used in this Registration Rights Agreement (this
“Agreement”),
the
following defined terms shall have the following meanings:
“Additional
Interest”
has
the
meaning assigned thereto in Section 7(a) hereof.
“Affiliate”
of
any
specified person means any other person which, directly or indirectly, is in
control of, is controlled by, or is under common control with such specified
person. For purposes of this definition, control of a person means the power,
direct or indirect, to direct or cause the direction of the management and
policies of such person whether by contract or otherwise; and the terms
“controlling” and “controlled” have meanings correlative to the
foregoing.
“Applicable
Amount”
means,
at the time of computation of any Additional Interest, the principal amount
of
the Securities then outstanding that are Registrable Securities.
“Business
Day”
means
each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which
banking institutions in the City of New York, State of New York are authorized
or obligated by law or executive order to close.
“Commission”
means
the United States Securities and Exchange Commission, or any other federal
agency at the time administering the Exchange Act or the Securities Act,
whichever is the relevant statute for the particular purpose.
“DTC”
means
The Depository Trust Company.
“Effectiveness
Period”
has
the
meaning assigned thereto in Section 2(b)(i) hereof.
“Effective
Time”
means
the time at which the Commission declares any Shelf Registration Statement
effective or at which time any Shelf Registration Statement otherwise becomes
effective.
“Exchange
Act”
means
the United States Securities Exchange Act of 1934, as amended.
“Holder”
means
any person that is the record owner of Registrable Securities (and includes
any
person that has a beneficial interest in any Registrable Security in book-entry
form).
“Indenture”
means
the Indenture, dated as of December 19, 2006, by and between the Company and
U.S. Bank National Association, pursuant to which the Securities are to be
issued, and as amended and supplemented from time to time in accordance with
its
terms.
“Issue
Date”
means
the first date of original issuance of the Securities.
“Majority
of Holders”
means
Holders holding over fifty percent (50%) of the aggregate principal amount
of
Registrable Securities outstanding.
“Managing
Underwriter”
has
the
meaning assigned thereto in Section 8 hereof.
“Notice
and Questionnaire”
means
a
Selling Security Holder Notice and Questionnaire substantially in the form
of
Appendix
A
hereto.
“Notice
Holder”
has
the
meaning assigned thereto in Section 3(a)(i) hereof.
The
term
“person”
means
an individual, partnership, limited liability company, corporation, trust or
unincorporated organization, or a government or agency or political subdivision
thereof.
“Prospectus”
means
the prospectus included in any Shelf Registration Statement, as amended or
supplemented by any prospectus supplement with respect to the terms of the
Offering of any portion of the Registrable Securities covered by any Shelf
Registration Statement and by all other amendments and supplements to such
prospectus, including all material incorporated by reference in such prospectus
and all documents filed after the date of such prospectus by the Company under
the Securities Act or the Exchange Act and incorporated by reference
therein.
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“Registrable
Securities”
means
all or any portion of the Securities issued from time to time under the
Indenture and the shares of Common Stock issuable upon conversion of the
Securities,
provided, however,
that a
security ceases to be a Registrable Security when it is no longer a Restricted
Security.
“Restricted
Security”
means
any Security or share of Common Stock issuable upon conversion thereof except
any such Security or share of Common Stock that (i) has been registered pursuant
to an effective registration statement under the Securities Act and sold in
a
manner contemplated by the Shelf Registration Statement, (ii) has been
transferred in compliance with Rule 144 under the Securities Act (or any
successor provision thereto) or is transferable pursuant to paragraph (k) of
such Rule 144 (or any successor provision thereto) or (iii) has otherwise
been transferred and a new Security or share of Common Stock not subject to
transfer restrictions under the Securities Act has been delivered by or on
behalf of the Company in accordance with Section 2.6 of the
Indenture.
“Registration
Default”
has
the
meaning assigned thereto in Section 7(a) hereof.
“Securities
Act”
means
the United States Securities Act of 1933, as amended.
“Shelf
Registration”
means
a
registration effected pursuant to Section 2 hereof.
“Shelf
Registration Statement”
means
a
shelf registration statement filed under the Securities Act providing for the
registration of, and the sale on a continuous or delayed basis by the Holders
of, all of the Registrable Securities pursuant to Rule 415 under the Securities
Act and/or any similar rule that may be adopted by the Commission, filed by
the
Company pursuant to the provisions of Section 2 of this Agreement, including
the
Prospectus contained therein, any amendments and supplements to such
registration statement and Prospectus, including post-effective amendments,
and
all exhibits and all material incorporated by reference in such registration
statement and Prospectus, and any additional shelf registration statements
filed
under the Securities Act to permit the registration and sale of Registrable
Securities pursuant to Section 3(a)(ii) hereof.
“Stockholder
Approval Date”
means
the date the Company’s stockholders approve the merger of the Company’s
wholly-owned subsidiary with and into Jazz Semiconductor, Inc. (“Jazz”)
pursuant to the Agreement and Plan of Merger dated as of September 26, 2006
by
and among the Company, Joy Acquisition Corp., Jazz and TC Group, L.L.C., as
Jazz’s stockholders’ representative and the proposal to increase the Company’s
authorized shares of Common Stock sufficient to allow for the of the issuance
of
shares upon conversion of the Securities.
“Suspension
Period”
has
the
meaning assigned thereto in Section 2(c) hereof.
“Trust
Indenture Act”
means
the Trust Indenture Act of 1939, or any successor thereto, and the rules,
regulations and forms promulgated thereunder, as the same shall be amended
from
time to time.
The
term
“underwriter”
means
any underwriter, or any person deemed to be an underwriter pursuant to the
Securities Act and Exchange Act and the respective rules and regulations
thereunder, as in effect at any relevant time, of Registrable Securities in
connection with an offering thereof under a Shelf Registration
Statement.
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Wherever
there is a reference in this Agreement to a percentage of the “principal amount”
of Registrable Securities or to a percentage of Registrable Securities, each
share of Common Stock issued upon conversion of the Securities which is a
Registrable Security shall represent a principal amount or percentage of
Registrable Securities determined based on the aggregate principal amount of
Securities that were converted into shares of Common Stock (as adjusted for
any
stock splits, stock dividends, recapitalizations, combinations, reorganizations
and like events) as of the date of determination.
2. Shelf
Registration.
(a) The
Company shall, as soon as practicable after the Stockholder Approval Date,
but
no later than ninety (90) calendar days following the Stockholder Approval
Date,
file with the Commission a Shelf Registration Statement to provide for the
offer
and sale of the Registrable Securities by the Holders from time to time in
accordance with the methods of distribution elected by such Holders and,
thereafter, shall use its reasonable best efforts to cause such initial Shelf
Registration Statement to be declared effective under the Securities Act no
later than one hundred and eighty (180) calendar days following the Stockholder
Approval Date;
provided, however,
that,
except for rights of securityholders under existing registration rights
agreements, only Holders who are Notice Holders shall be entitled to be named
as
a selling securityholder in any Shelf Registration Statement as of the date
it
is declared effective or to use the Prospectus forming a part thereof for offers
and resales of Registrable Securities. Except for rights of securityholders
under existing registration rights agreements, none of the Company’s
securityholders (other than Holders of Registrable Securities) shall have the
right to include any of the Company’s other securities in the Shelf Registration
Statement. Notwithstanding anything to the contrary contained herein, neither
the Company nor any of its subsidiaries or Affiliates shall disclose the name
of
any investors in any filing, announcement, release or otherwise without the
prior written consent of the applicable investor. The receipt of a Notice and
Questionnaire shall be considered a valid consent for the purposes of this
Section 2 for use of the information contained in such Notice and
Questionnaire.
(b) Subject
to Section 2(c) hereof, the Company shall use its reasonable best
efforts:
(i) to
keep
any Shelf Registration Statement continuously effective, supplemented and
amended as required by the provisions of Section 3(j) hereof, in order to permit
the Prospectus forming a part thereof to be usable by Holders until the earlier
of: (w) two years from the date of its effectiveness, (x) that date when all
of
the Holders of Registrable Securities are able to sell all Registrable
Securities immediately without restriction pursuant to Rule 144(k) under the
Securities Act or any successor rule thereto, (y) that date when all Registrable
Securities registered under the Shelf Registration Statements have been sold,
or
(z) that date when all Registrable Securities have ceased to be outstanding
(such period being referred to herein as the “Effectiveness
Period”);
and
(ii) after
the
Effective Time of the initial Shelf Registration Statement, to take the actions
provided for in Section 3(a)(ii) hereof after the receipt of a completed and
signed
Notice and Questionnaire from any Holder of Registrable Securities that is
not
then a Notice Holder; provided,
however,
that
nothing in this subparagraph shall relieve such holder of the obligation to
return a completed and signed Notice and Questionnaire to the Company in
accordance with Section 3(a)(i) hereof.
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(iii) If
at any
time the Securities are convertible into securities other than Common Stock,
the
Company shall, or shall cause any successor under the Indenture to, cause such
securities to be included in the Shelf Registration Statement no later than
the
date on which the securities may then be convertible into such
securities.
(c) After
the
Effective Time of the initial Shelf Registration Statement, the Company may
suspend the use of any Prospectus by written notice to the Notice Holders for
a
period not to exceed an aggregate of ninety (90) calendar days in any 12-month
calendar period and not in excess of forty-five (45) consecutive calendar days
in any such 12-month calendar period (each such period, a “Suspension
Period”)
if:
(i) an
event
has occurred and is continuing, as a result of which the Shelf Registration
Statement would, in the Company’s reasonable judgment, contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; and
(ii) the
Company determines in good faith that the disclosure of such event at such
time
would have a material adverse effect on the Company and its subsidiaries taken
as a whole.
(d) The
Company represents and warrants that it meets the requirements for the use
of
Form SB-2 or S-1 for registration of the sale by the Holders of the Registrable
Securities, subject to interpretations by the staff of the Commission that
prohibit the reliance on Rule 415(a)(1)(ii) where the amount of securities
being
registered exceeds certain thresholds. The Company agrees to file all reports
required to be filed by the Company with the Commission in a timely manner
so as
to become eligible, and thereafter to maintain its eligibility, for the use
of
Form S-3. The Company confirms that it expects to meet the registration
eligibility and transaction requirements for use of Form S-3 (or any successor
form) at the time it files the Shelf Registration Statement. In the event it
is
not so eligible at such time, not later than five (5) Business Days after the
Company first meets the registration eligibility and transaction requirements
for the use of Form S-3 (or any successor form) for registration of the offer
and sale by the Holders of Registrable Securities, the Company shall file a
Registration Statement on Form S-3 (or such successor form) with respect to
the
Registrable Securities covered by the Registration Statement on Form SB-2 or
Form S-1, whichever is applicable, filed pursuant to Section 2(a) (and include
in such Registration Statement on Form S-3 the information required by Rule
429 under the ▇▇▇▇ ▇▇▇) or convert the Registration Statement on Form SB-2
or
Form S-1, whichever is applicable, filed pursuant to Section 2(a) to a Form
S-3
pursuant to Rule 429 under the 1933 Act and cause such Registration Statement
(or such amendment) to be declared effective no later than forty-five (45)
days
after filing.
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3. Registration
Procedures.
In
connection with the Shelf Registration Statements, the following provisions
shall apply:
(a) i) not
less
than thirty (30) calendar days prior to the time the Company in good faith
intends to have the initial Shelf Registration Statement declared effective,
the
Company shall distribute the Notice and Questionnaire to the Holders of
Registrable Securities. The Company shall take action to name as a selling
securityholder in the initial Shelf Registration Statement at the Effective
Time
each Holder that completes, executes and delivers a Notice and Questionnaire
to
the Company (a “Notice
Holder”)
prior
to or on the twentieth (20th)
calendar day after such Holder’s receipt thereof so that such Holder is
permitted to deliver the Prospectus forming a part thereof to purchasers of
such
Holder’s Registrable Securities in accordance with applicable law. The Company
shall not be required to take any action to name any Holder as a selling
securityholder in the initial Shelf Registration Statement at the time of its
effectiveness or to enable any Holder to use the Prospectus forming a part
thereof for resales of Registrable Securities unless such Holder has returned
a
completed and signed Notice and Questionnaire to the Company in a timely manner
as provided above.
(ii) After
the
Effective Time of the initial Shelf Registration Statement, the Company shall,
upon the request of any Holder of Registrable Securities that is not then a
Notice Holder, promptly send a Notice and Questionnaire to such Holder. After
the Effective
Time of the initial Shelf Registration Statement, the Company shall, subject
to
the provisos below (A) as promptly as reasonably practicable, after the date
a
completed and signed Notice and Questionnaire is delivered to the Company,
and
in any event within ten (10) Business Days or, if the Company is required to
file with the Commission a new Shelf Registration, forty-five (45) calendar
days, after such date, prepare and file with the Commission (1) a supplement
to
the Prospectus or, if required by applicable law, a post-effective amendment
to
the Shelf Registration Statement or an additional Shelf Registration Statement,
and (2) any other document required by applicable law, so that the Holder
delivering such Notice and Questionnaire is named as a selling securityholder
in
a Shelf Registration Statement and is permitted to deliver the Prospectus to
purchasers of such Holder’s Registrable Securities in accordance with applicable
law, and (B) use its reasonable best efforts to cause any post-effective
amendment or such additional Shelf Registration Statement to become effective
under the Securities Act as promptly as is reasonably practicable thereafter;
provided,
however,
that if
a Notice and Questionnaire is delivered to the Company during a Suspension
Period, the Company shall not be obligated to take the actions set forth in
this
clause (ii) until the termination of such Suspension Period and provided
further
that (a)
the Company may take reasonable steps to aggregate the addition of the
Securities of more than one Holder for purposes of filing amendments to the
Shelf Registration Statement or supplements to the Prospectus to reduce the
need
for multiple amendments or supplements, including delaying the filing of any
amendment or supplement for up to 30 days from the initial request in order
to
aggregate the addition of Securities from other Holders and (b) the Company
will
not be required to file more than two amendments or supplements in any ninety
(90) day period.
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(b) The
Company shall furnish to each Notice Holder no fewer than five (5) Business
Days
prior to the initial filing of the Shelf Registration Statement, a copy of
such
Shelf Registration Statement, and shall use its reasonable best efforts to
reflect in such document when so filed with the Commission such comments as
such
holders and their respective counsel reasonably may propose;
provided, however,
that
the Company shall make the final decision as to the form and content of each
such document. If any Shelf Registration Statement refers to any Notice Holder
by name or otherwise as the holder of any securities of the Company, then such
Notice Holder shall have the right to require (i) the insertion therein of
language, in form and substance reasonably satisfactory to such Notice Holder,
to the effect that the holding by such Notice Holder of such securities is
not
to be construed as a recommendation by such Notice Holder of the investment
quality of the Company’s securities covered thereby and that such holding does
not imply that such Notice Holder will assist, in meeting any future financial
requirements of the Company or (ii) in the event that such reference to such
Notice Holder by name or otherwise is not required by the Securities Act or
any
similar Federal statute then in force, the deletion of the reference to such
Notice Holder in any amendment or supplement to the Registration Statement
filed
or prepared subsequent to the time that such reference ceases to be
required.
(c) The
Company shall promptly take such action as may be necessary so that (i) each
of
the Shelf Registration Statements and any amendment or supplement thereto and
the Prospectus forming a part thereof and any amendment or supplement thereto
(and each report or other document incorporated therein by reference in each
case) complies in all material respects with the Securities Act and the Exchange
Act and the respective rules and regulations thereunder, as in effect at any
relevant time, (ii) each of the Shelf Registration Statements and any amendment
or supplement 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, in light of the
circumstances under which they were made, not misleading, (iii) each Prospectus
forming a part of any Shelf Registration Statement, and any amendment or
supplement to such Prospectus, in the form delivered to purchasers of the
Registrable Securities during the Effectiveness Period, 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 circumstances in which
they
were made, not misleading, and (iv) a Prospectus filed in compliance with Rule
424 (or any similar provision then in force) under the Securities Act shall
be
filed within two (2) Business Days of the time the Shelf Registration Statement
becomes effective.
(d) The
Company shall promptly give notice to each Notice Holder, and shall confirm
such
notice in writing if so requested by any such Notice Holder (which notice
pursuant to clauses (iii)-(vi) hereof shall be accompanied by an instruction
to
such Holders to suspend the use of the Prospectus until the requisite changes
have been made, which notice need not specify the nature of the event giving
rise to such suspension):
(i) when
the
initial Shelf Registration Statement has been filed with the Commission and
when
the initial Shelf Registration Statement has become effective;
(ii) when
any
supplement to the Prospectus, Shelf Registration Statement or post-effective
amendment to a Shelf Registration has been filed with the Commission and, with
respect to a Shelf Registration Statement or any post-effective amendment,
when
the same has been declared effective by the Commission;
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(iii) of
any
request by the Commission for amendments or supplements to any effective Shelf
Registration Statement or the Prospectus included therein or for additional
information;
(iv) of
the
issuance by the Commission of any stop order suspending the effectiveness of
any
Shelf Registration Statement or the initiation of any proceedings for such
purpose;
(v) 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 of any proceeding for such purpose;
and
(vi) of
the
happening of any event or the existence of any state of facts that requires
the
making of any changes in any Shelf Registration Statement or the Prospectus
included therein so that, as of such date, such Shelf Registration Statement
and
Prospectus do not contain an untrue statement of a material fact and do not
omit
to state a material fact required to be stated therein or necessary to make
the
statements therein, in light of the circumstances under which they were made,
not misleading.
(e) The
Company shall use its reasonable best efforts to prevent the issuance, and
if
issued to obtain the withdrawal at the earliest possible time, of any order
suspending the effectiveness of any Shelf Registration Statement.
(f) The
Company shall, as promptly as reasonably practicable, furnish to each Notice
Holder, upon their request and without charge, at least one conformed copy
of
the Shelf Registration Statement and any amendment or supplement thereto,
including financial statements but excluding schedules, all documents
incorporated or deemed to be incorporated therein by reference and all exhibits
(unless requested in writing to the Company by such Notice Holder).
(g) The
Company shall, during the Effectiveness Period, deliver to each Notice Holder,
without charge, as many copies of each Prospectus in which the Notice Holder
is
listed as a selling securityholder included in the applicable Shelf Registration
Statement and any amendment or supplement thereto as such Notice Holder may
reasonably request; and the Company consents (except during a Suspension Period
or during the continuance of any event described in Section 3(d) (iii)-(vi)
above, limited, in the case of Section 3(d)(v), to the jurisdiction in question
thereunder) to the use of the Prospectus and any amendment or supplement thereto
by each of the Notice Holders in connection with the offering and sale of the
Registrable Securities covered by the Prospectus and any amendment or supplement
thereto during the Effectiveness Period.
(h) Prior
to
any offering of Registrable Securities pursuant to a Shelf Registration
Statement, the Company shall (i) register or qualify or cooperate with the
Notice Holders and their respective counsel in connection with the registration
or qualification (or exemption from such registration or qualification) of
such
Registrable Securities for offer and sale under the securities or “blue sky
“laws of such jurisdictions within the United States as any Notice Holder may
reasonably request in writing, (ii) keep such registrations or qualifications
or
exemptions therefrom in effect and comply with such laws so as to permit the
continuance of offers and sales in such jurisdictions for so long as may be
necessary to enable any Notice Holder or underwriter, if any, to complete its
distribution of Registrable Securities pursuant to such Shelf Registration
Statement, and (iii) take any and all other actions necessary or advisable
to
enable the disposition in such jurisdictions of such Registrable
Securities;
provided, however,
that in
no event shall the Company be obligated to (A) qualify as a foreign corporation
or as a dealer in securities in any jurisdiction where it would not otherwise
be
required to so qualify but for this Section 3(h), or (B) subject itself to
general or unlimited service of process or taxation in any such jurisdiction
if
it is not otherwise so subject.
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(i) Unless
any Registrable Securities shall be in book-entry only form, the Company shall
cooperate with the Notice Holders to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold pursuant
to any Shelf Registration Statement, which certificates, if so required by
any
securities market or exchange upon which any Registrable Securities are quoted
or listed, shall be penned, lithographed or engraved, or produced by any
combination of such methods, on steel engraved borders, and which certificates
shall be free of any restrictive legends and in such permitted denominations
and
registered in such names as Notice Holders may reasonably request in connection
with the sale of Registrable Securities pursuant to such Shelf Registration
Statement.
(j) Upon
the
occurrence of any event or the existence of any fact contemplated by paragraph
3(d)(vi) above, subject to the Company’s rights under Section 2(c) hereof to
initiate a Suspension Period, the Company shall promptly, but in any event
within ten (10) Business Days following such occurrence or existence, prepare
and file (and have declared effective) a post-effective amendment to any Shelf
Registration Statement or an
amendment or supplement to the related Prospectus included therein or file
any
other document with the Commission (except, to the extent the Company determines
in good faith that the disclosure of such event at such time would not be in
the
best interests of the Company) so that, as thereafter delivered to purchasers
of
the Registrable Securities, the Prospectus will not include an untrue statement
of a material fact or omit to state any material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading. If the Company notifies the Notice Holders of the occurrence
of
any event or the existence of any fact contemplated by paragraph 3(d)(vi) above,
the Notice Holder shall suspend the use of the Prospectus and keep the
notification provided pursuant to paragraph 3(d)(vi) above confidential until
(i) such Notice Holder has received copies of the supplemented or amended
Prospectus contemplated by the preceding sentence or (ii) such Notice Holder
is
advised in writing by the Company that the use of the Prospectus may be resumed
and has received copies of any additional or supplemental filings that are
incorporated by reference in the Prospectus. Notwithstanding the foregoing,
but
subject to Section 8 hereof, the Company shall not be required to amend or
supplement the Shelf Registration Statement, any related Prospectus or any
document incorporated by reference as provided in Section 2(c) with respect
to
Suspension Periods.
(k) Not
later
than the Effective Time of a Shelf Registration Statement, the Company shall
provide a CUSIP number for the debt securities to be sold pursuant to a Shelf
Registration Statement.
(l) The
Company shall use reasonable best efforts to comply with the Securities Act
and
the Exchange Act and the respective rules and regulations thereunder, as in
effect at any relevant time, and make generally available to its securityholders
earnings statements (which need not be audited) satisfying the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar
rule
promulgated under the Securities Act) no later than ninety (90) days after
the
end of any 12-month period (or ninety (90) days after the end of any 12-month
period if such period is a fiscal year), or such shorter period as required
by
the Securities Act and the Exchange Act and the respective rules and regulations
thereunder, as in effect at any relevant time.
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(m) Not
later
than the Effective Time of the initial Shelf Registration Statement, the Company
shall use its reasonable best efforts to cause the Indenture to be qualified
under the Trust Indenture Act; in connection with such qualification, the
Company shall cooperate with the Trustee under the Indenture to effect such
changes to the Indenture as may be required for such Indenture to be so
qualified in accordance with the terms of the Trust Indenture Act; and the
Company shall execute, and shall use reasonable best efforts to cause the
Trustee to execute, all documents that may be required to effect such changes
and all other forms and documents required to be filed with the Commission
to
enable such Indenture to be so qualified in a timely manner. In the event that
any such amendment or modification referred to in this Section 3(m) involves
the
appointment of a new trustee under the Indenture, the Company shall appoint
a
new trustee thereunder pursuant to the applicable provisions of the
Indenture.
(n) The
Company shall make reasonably available for inspection by one or more
representatives of the Notice Holders, designated in writing by a Majority
of
Holders whose Registrable Securities are included in a Shelf Registration
Statement, any underwriter participating
in any disposition pursuant to any Shelf Registration Statement, and any
attorney, accountant or other agent retained by such Notice Holders or any
such
underwriter (i) all relevant financial and other records, pertinent corporate
documents and properties of the Company and its subsidiaries (other than records
and documents that the Company agreed contractually not to disclose), and (ii)
cause the Company’s officers, directors and employees to make available for
inspection all information (other than information the Company agreed
contractually not to disclose) reasonably requested by such Notice Holders
or
any such underwriter, attorney, accountant or agent in connection with such
Shelf Registration Statement, in each case, as is customary for similar due
diligence examinations;
provided, however,
that
such persons shall, at the Company’s request, first agree in writing with the
Company that any information that is reasonably and in good faith designated
by
the Company in writing as confidential at the time of delivery or inspection,
as
the case may be, of such information shall be kept confidential by such persons
and shall be used solely for the purposes of exercising rights under this
Agreement, unless such disclosure is made in connection with a court proceeding
or required by law, or such records, information or documents become available
to the public generally or through a third party without an accompanying
obligation of confidentiality or the content of such disclosure was already
known and independently developed by the relevant Notice Holder;
provided further,
however,
that, if
the foregoing inspection and information gathering would otherwise disrupt
the
Company’s conduct of its business, such inspection and information gathering
shall, to the greatest extent possible, be coordinated on behalf of the Notice
Holders and the other parties entitled thereto by one counsel designated by
and
on behalf of the Notice Holders and other parties.
-10-
(o) The
Company will use its reasonable best efforts to cause the Common Stock issuable
upon conversion of the Securities to be quoted or listed on the American Stock
Exchange or other market or stock exchange on which the Common Stock primarily
trades on or prior to the Effective Time of each Shelf Registration Statement
hereunder.
(p) The
Company will cooperate and assist in any filings required to be made with
National Association of Securities Dealers, Inc or other market or stock
exchange on which the Common Stock may trade.
(q) The
Company shall use its reasonable best efforts to take all other steps necessary
to effect the registration, offering and sale of the Registrable Securities
covered by each Shelf Registration Statement contemplated hereby, including,
without limitation, entering into an underwriting agreement in customary form
(if the distribution of Registrable Securities is to be made pursuant to an
underwritten public offering) and such other customary agreements as may be
necessary, desirable or appropriate, and taking all such other necessary actions
in connection therewith.
(r) The
Company shall:
(i) (A)
make
reasonably available for inspection by requesting Notice Holders, any
underwriter participating in any disposition pursuant to the Shelf Registration
Statement, and any attorney selected in accordance with Section 4 hereof, one
accountant and any other agent retained by such holders or any such underwriter,
all relevant financial and other records, pertinent corporate documents and
properties of the Company and its subsidiaries and (B) cause the Company’s
officers, directors and employees to supply all information reasonably requested
by such holders or any such underwriter, attorney, accountant or agent in
connection with
the
Shelf Registration Statement, in each case, as is customary for similar due
diligence examinations; provided,
however,
that all
records, information and documents that are designated in writing by the
Company, in good faith, as confidential shall be kept confidential by such
holders and any such underwriter, attorney, accountant or agent, unless such
disclosure is made in connection with a court proceeding or required by law,
or
such records, information or documents become available to the public generally
or through a third party without an accompanying obligation of confidentiality;
and provided
further
that, if
the foregoing inspection and information gathering would otherwise disrupt
the
Company’s conduct of its business, such inspection and information gathering
shall, to the greatest extent possible, be coordinated on behalf of the
requesting Notice Holders and the other parties entitled thereto by one counsel
designated by and on behalf of Notice Holders and other parties;
(ii) in
connection with any underwritten offering conducted pursuant to Section 8
hereof, make such representations and warranties to the Notice Holders
participating in such underwritten offering and to the Managing Underwriter,
in
form, substance and scope as are customarily made by the Company to underwriters
in primary underwritten offerings of equity and convertible debt
securities;
(iii) in
connection with any underwritten offering conducted pursuant to Section 8
hereof, obtain opinions of counsel to the Company (which counsel and opinions
(in form, scope and substance) shall be reasonably satisfactory to the Managing
Underwriter) addressed to each requesting Notice Holder, covering such matters
as are customarily covered in opinions requested in primary underwritten
offerings of equity and convertible debt securities and such other matters
as
may be reasonably requested by such Notice Holders and underwriters (it being
agreed that the matters to be covered by such opinions shall include, without
limitation, as of the date of the opinion and as of the Effective Time or the
date of the most recent post-effective amendment thereto, as the case may be,
the absence from the Shelf Registration Statement and the Prospectus, including
the documents incorporated by reference therein, of an untrue statement of
a
material fact or the omission of 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);
-11-
(iv) in
connection with any underwritten offering conducted pursuant to Section 8
hereof, obtain “cold comfort” letters and updates thereof from the independent
public accountants of the Company (and, if necessary, from the independent
public accountants of any subsidiary of the Company or of any business acquired
by the Company for which financial statements and financial data are, or are
required to be, included in the Shelf Registration Statement), addressed to
each
requesting Notice Holder (if such Notice Holder has provided such letter,
representations or documentation, if any, required for such cold comfort letter
to be so addressed) and the underwriters, in customary form and covering matters
of the type customarily covered in “cold comfort” letters in connection with
primary underwritten offerings;
(v) in
connection with any underwritten offering conducted pursuant to Section 8
hereof, deliver such documents and certificates as may be reasonably requested
by any Notice Holders and the Managing Underwriter, if any, including without
limitation certificates to evidence compliance with Section 3(j) hereof and
with
any conditions contained in the underwriting agreement or other agreements
entered into by the Company.
4. Registration
Expenses.
The
Company shall bear all fees, costs and expenses incurred in connection with
the
performance by the Company of all of its obligations under Sections 2 and 3
of
this Agreement whether or not any of the Shelf Registration Statements are
declared effective. Such fees, costs and expenses shall include, without
limitation, (i) all registration and filing fees (including, without limitation,
fees and expenses (A) with respect to filings required to be made with the
National Association of Securities Dealers, Inc., and (B) of compliance with
United States federal and state securities or “blue sky” laws (including,
without limitation, reasonable fees and disbursements of the counsel specified
in the next sentence in connection with “blue sky” qualifications of the
Registrable Securities under the laws of such jurisdictions as a Majority of
Holders whose Registrable Securities are included in a Shelf Registration
Statement may designate)), (ii) printing expenses (including, without
limitation, expenses of printing certificates for Registrable Securities in
a
form eligible for deposit with The Depository Trust Company), (iii) duplication
expenses relating to copies of any Shelf Registration Statement, Prospectus
and
other documents delivered to any Holder hereunder, (iv) fees and disbursements
of counsel and independent accountants for the Company in connection with the
Shelf Registration Statement, and (v) reasonable fees and disbursements of
the
Trustee and its counsel and of the registrar and transfer agent for the Common
Stock. In addition, the Company shall bear or reimburse the Notice Holders
for
the reasonable fees and disbursements of one firm of legal counsel for the
Holders, which shall initially be counsel to the Initial Purchasers, but which
may, upon the written consent of a Majority of Holders, be another nationally
recognized law firm experienced in securities law matters designated by the
Company. In addition, the Company shall pay the internal expenses of the Company
(including, without limitation, all salaries and expenses of officers and
employees performing legal or accounting duties), the expense of any annual
audit, the fees and expenses incurred in connection with the listing of the
Registrable Securities on any securities exchange on which similar securities
of
the Company are then listed and the fees and expenses of any person, including
special experts, retained by the Company.
-12-
5. Indemnification
and Contribution.
(a) Indemnification
by the Company.
The
Company shall indemnify and hold harmless each Notice Holder, the Initial
Purchasers, any underwriter that participates in an offering of Securities
under
the Shelf Registration Statement, each person, if any, who controls any such
Notice Holder, Initial Purchaser or any such underwriter within the meaning
of
Section 15 of the Securities Act or Section 20 of the Exchange Act and the
respective officers, directors, partners, employees, representatives and agents
of any such Notice Holder, the Initial Purchasers, any such underwriter or
any
controlling person, from and against any loss, claim, damage, liability, cost
or
expense whatsoever as incurred (including, but not limited to, attorneys’ fees
and any and all expenses whatsoever incurred in investigating, preparing or
defending against any litigation, commenced or threatened, or any claim
whatsoever, and any and all amounts paid in settlement of any claim or
litigation), joint or several, to which they or any of them may become subject
under the Securities Act, the Exchange Act or otherwise, insofar as any such
loss, claim, damage, liability, cost or expense (or action in respect thereof)
arises out of, or is based upon, any untrue statement or alleged untrue
statement of a material fact contained in the Shelf Registration Statement
or
any amendment thereto or supplement thereof or any related preliminary
prospectus or the Prospectus or any amendment thereto or supplement thereof,
or
arises out of, or is based upon, the omission or alleged omission to state
therein any material fact required to be stated therein or necessary to make
the
statements therein, in light of the circumstance in which they were made, not
misleading;
provided, however,
that
the Company shall not be liable to any such indemnified party in any such case
to the extent that any such loss, claim, damage, liability, cost or expense
arises out of, or is based upon, 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
such indemnified party specifically for use therein;
provided, further, however,
that
the Company shall not be liable to any such indemnified party in any such case
to the extent that such loss, claim, damage, liability, cost or expense arises
from an offer or sale by a Notice Holder of Registrable Securities during a
Suspension Period, if such indemnified party is a Notice Holder that received
from the Company a notice of the commencement of such Suspension Period prior
to
the making of such offer or sale. The foregoing indemnity agreement is in
addition to any liability that the Company may otherwise have to any indemnified
party, and the Company hereby confirms that it will indemnify the indemnified
party with respect to any breach by the Company of its indemnity obligations
hereunder. The Company shall not be liable under this Section 5(a) for any
settlement of any action effected without its written consent, which shall
not
be unreasonably withheld. In addition, with respect to any untrue statement
or
alleged untrue statement in, or omission or alleged omission from the
Prospectus, the Company shall not be liable to any Notice Holder or underwriter
(or the directors and officers of any Notice Holder or underwriter or any person
controlling such Notice Holder or underwriter within the meaning of Section
15
of the Securities Act or Section 20 of the Exchange Act) from whom the person
asserting any such loss, claims, damages or liabilities purchased the
Registrable Securities concerned, to the extent that any such loss, claims
damages or liabilities of such person results from the fact that there was
not
sent or given to such person, at or prior to the written confirmation of such
sale of such Registrable Securities to such person, a copy of the Prospectus,
as
amended or supplemented, if the Company had previously furnished copies thereof
to such Notice Holder or underwriter. Any amounts advanced by the Company to
an
indemnified party pursuant to this Agreement shall be returned to the Company
if
it shall be finally determined by a court of competent jurisdiction, not subject
to appeal, that such indemnified party was not entitled to indemnification
by
the Company.
-13-
(b) Indemnification
by the Notice Holders.
Each
Notice Holder, severally and not jointly, shall indemnify and hold harmless
the
Company, the Initial Purchasers, each underwriter, each other Holder, each
person, if any, who controls the Company, an Initial Purchaser, any underwriter
or another Holder within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act and the respective officers, directors,
partners, employees, representatives and agents of the Company, the Initial
Purchasers, any underwriter, any other Holder or any controlling person, from
and against any loss, claim, damage, liability, cost or expense whatsoever
as
incurred (including, but not limited to, attorneys’ fees and any and all
expenses whatsoever incurred in investigating, preparing or defending against
any litigation, commenced or threatened, or any claim whatsoever, and any and
all amounts paid in settlement of any claim or litigation), joint or several,
to
which they or any of them may become subject under the Securities Act, the
Exchange Act or otherwise, insofar as any such loss, claim, damage, liability,
cost or expense (or action in respect thereof) arises out of, or is based upon,
any untrue statement or alleged untrue statement of a material fact contained
in
the Shelf Registration Statement or any amendment thereto or any related
preliminary prospectus or the Prospectus or any amendment thereto or supplement
thereof, or arises out of, or is based upon, the omission or alleged omission
to
state therein, in light of the circumstances in which they were made, any
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent,
that
such untrue statement or alleged untrue statement or omission or alleged
omission made therein was made in reliance upon and in conformity with written
information furnished to the Company by or on behalf of such Notice Holder
specifically for use therein. In no event shall the liability of any selling
Notice Holder hereunder be greater in amount than the dollar amount of the
net
proceeds received by such Notice Holder upon the sale of the Registrable
Securities pursuant to the Shelf Registration Statement giving rise to such
indemnification obligation. The foregoing indemnity agreement is in addition
to
any liability that any Notice Holder may otherwise have to the Company, the
Initial Purchasers and any such other person.
(c) Notices
of Claims, Etc.
Promptly after receipt by an indemnified party under this Section 5 of
notice of any claim or the commencement of any action, the indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under this Section 5, notify the indemnifying party in writing of the
claim or the commencement of that action;
provided, however,
that
the failure to notify the indemnifying party shall not relieve it from any
liability that it may have under this Section 5 (except to the extent the
defense of such claim or action has been materially prejudiced by such failure).
If any such claim or action shall be brought against an indemnified party,
and
it shall notify the indemnifying party thereof, the indemnifying party shall
be
entitled to participate therein and, to the extent that it wishes, jointly
with
any other similarly notified indemnifying party, to assume the defense thereof
with counsel satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable
to
the indemnified party under this Section 5 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation;
provided, however,
that
the indemnified party shall have the right to employ counsel to represent
jointly the indemnified party and its respective officers, directors, partners,
employees, representatives, agents and controlling persons who may be subject
to
liability arising out of any claim in respect of which indemnity may be sought
by the indemnified party against the indemnifying party under this Section
5 if
(i) employment of such counsel has been
authorized in writing by the indemnifying party, or (ii) such indemnifying
party
shall not have employed counsel satisfactory to the indemnified party to have
charge of the defense of such proceeding within thirty (30) days of the receipt
of notice thereof, or (iii) such indemnified party shall have reasonably
concluded that the representation of such indemnified party and those officers,
directors, partners, employees, representatives, agents and controlling persons
by the same counsel representing the indemnifying party would be inappropriate
under applicable standards of professional conduct due to actual or potential
differing interests between them or where there may be one or more defenses
available to them that are different from, additional to or in conflict with
those available to the indemnifying party, and in any such event ((i), (ii)
or
(iii)) the fees and expenses of such separate counsel shall be paid by the
indemnifying party as incurred. It is understood that the indemnifying party
shall not be liable for the fees and expenses of more than one separate firm
(in
addition to local counsel in each jurisdiction) for all indemnified parties
in
connection with any proceeding or related proceedings. No indemnifying party
shall, without the prior written consent of the indemnified parties, effect
any
settlement or compromise of, or consent to the entry of judgment with respect
to, any pending or threatened claim, investigation, action, suit or proceeding
in respect of which indemnity or contribution may be or could have been sought
hereunder (whether or not the indemnified party or parties are actual or
potential parties thereto) unless (A) such settlement, compromise or judgment
(1) includes an unconditional release of such indemnified party from all
liability arising out of such claim, investigation, action, suit or proceeding,
and (2) does not include a statement as to or an admission of fault, culpability
or failure to act by or on behalf of any indemnified party, and (B) the
indemnifying party confirms in writing its indemnification obligations hereunder
with respect to such settlement, compromise or judgment.
-14-
(d) Contribution.
If the
indemnification provided for in this Section 5 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, costs, expenses
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 registration of the Registrable
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,
costs, expenses 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 such 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 Section 5(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 Section 5(d). The Company and the Holders agree that it
would not be just and equitable if contribution pursuant to this Section 5(d)
were
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to herein.
Notwithstanding any other provision of this Section 5(d), no Holder of the
Registrable Securities shall be required to contribute any amount in excess
of
the amount by which the net proceeds received by such Holder from the sale
of
its Registrable Securities pursuant to the Shelf Registration Statement exceeds
the amount of damages which such Holder has otherwise been required to pay
by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For purposes
of this Section 5(d), each officer, director, partner, employee, representative
or agent of an indemnified party, and 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
officer, director, partner, employee, representative and agent of the Company,
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. The Holders’ respective obligations to contribute pursuant to
this Section 5(d) are several in proportion to the respective amount of
Registrable Securities they have sold pursuant to a Shelf Registration Statement
and not joint. The remedies provided for in this Section 5(d) are not exclusive
and shall not limit any rights or remedies which may otherwise be available
to
any indemnified party at law or in equity. The Company shall not be liable
for
contribution with respect to any actions, suit, proceeding, or claim settled,
compromised, or with respect to which entry of a judgment was consented to
by
the person seeking contribution, without the Company’s written consent, which
consent shall not be unreasonably withheld.
-15-
(e) Undertaking.
The
Company may require, as a condition to entering into any underwriting agreement
with respect thereto, that the Company shall have received an undertaking from
the Holder and any such underwriter to comply with the provisions of this
Section 5.
(f) Survival.
The
indemnity and contribution provisions contained in this Section 5 shall remain
operative and in full force and effect regardless of (i) any termination of
this
Agreement, (ii) any investigation made by or on behalf of the Initial
Purchasers, any underwriter, any Holder, any officer, director, partner,
employee, representative or agent of the Initial Purchasers, any underwriter,
or
any Holder, or any person controlling an Initial Purchaser, any underwriter
or
any Holder, or by or on behalf of the Company, its officers, directors,
partners, employees, representatives or agents or any person controlling the
Company, and (iii) any sale of Registrable Securities pursuant to a Shelf
Registration Statement.
6. Holder’s
Obligations.
Each
Holder agrees, by acquisition of the Registrable Securities, that no Holder
of
Registrable Securities shall be entitled to sell any of such Registrable
Securities pursuant to a 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 3(a) hereof (including all the
information required to be included in such Notice and Questionnaire) and the
information set forth in the next sentence. Each Notice Holder agrees to
promptly furnish to the Company all information required to be disclosed in
order to make the information previously furnished to the Company by such Notice
Holder not misleading and any other information regarding such Notice Holder
and
the distribution of such Registrable Securities as may be required to be
disclosed in the Shelf Registration Statement under applicable law, pursuant
to
comments from the Commission or as the Company may from time to time reasonably
request. Any sale of any Registrable Securities by any Notice Holder shall
constitute a representation and warranty by such Notice Holder that the
information relating to such Notice Holder and its plan of distribution is
as
set forth in the Prospectus delivered by such Notice Holder
in
connection with such disposition, that such Prospectus does not, as of the
time
of such sale, contain any untrue statement of a material fact relating to such
Notice Holder or its plan of distribution, and that such Prospectus does not,
as
of the time of such sale, omit to state any material fact relating to or
provided by such Notice Holder or its plan of distribution necessary in order
to
make the statements in such Prospectus, in the light of the circumstances under
which they were made, not misleading, in each case to the extent, but only
to
the extent, that such untrue statement or omission was made in reliance on
and
in conformity with written information furnished to the Company by or on behalf
of such Notice Holder.
7. Additional
Interest.
(a) If:
(i) on
or
prior to the one hundred and eightieth (180th) day following the Stockholder
Approval Date, such initial Shelf Registration Statement is not declared
effective by the Commission, or
-16-
(ii) after
the
effectiveness date of any Shelf Registration Statement, (A) such Shelf
Registration Statement ceases to be effective or usable for the offer and sale
of Registrable Securities (other than due to a Suspension Period), and the
Company fails to file (and have declared effective), within five (5) Business
Days, a post-effective amendment to such Shelf Registration Statement or
amendment or supplement to the Prospectus contained therein or such other
document with the Commission to make such Shelf Registration Statement effective
or such Prospectus usable, or (B) the Suspension Periods exceed ninety (90)
calendar days, whether or not consecutive, in any 12-month calendar period,
or
(iii) the
Company shall have failed to timely comply with any of its obligations set
forth
in Section 3(a)(ii) hereof, provided that such failure is not solely due to
the
failure of a Holder of Registrable Securities to perform its obligations set
forth in Section 3(a)(i) hereof (each of (i) through (iii) a “Registration
Default”),
the
Company shall be required to pay additional interest (“Additional
Interest”)
with
respect to the Securities then outstanding that are Registrable Securities,
from
and including the day following such Registration Default to but excluding
the
day on which such Registration Default is cured, at a rate per annum equal
to an
additional one-quarter of one percent (0.25%) per annum of the Applicable Amount
during the first 90 days following the date of a Registration Default and
increasing at the end of such 90-day period by an additional one-quarter of
one
percent (0.25%) per annum to a maximum amount of one-half of one percent (0.50%)
per annum. The Company shall notify the Trustee as promptly as possible, but
in
no event later than three (5) Business Days after each and any date on which
a
Registration Default occurs. The requirement of the Company to pay Additional
Interest ceases on the day such Registration Default is cured.
(b) Any
amounts to be paid as Additional Interest pursuant to paragraph (a) of this
Section 7 shall be paid by wire transfer of immediately available funds or
by
federal funds check on the first interest payment date in respect of the
Securities following the date on which such Additional Interest begins to
accrue.
(c) A
Registration Default pursuant to paragraph (a)(ii) or (iii) above may not occur
during any Suspension Period, and any Registration Default pursuant to paragraph
(a)(ii) or (iii) above in existence at the commencement of any Suspension Period
shall be tolled and the Additional Interest rate shall not be increased because
of such Registration Default during such Suspension Period. Notwithstanding
anything herein to the contrary, during the occurrence of any Registration
Defaults, offers and sales of transfer restricted Securities pursuant to the
Shelf Registration Statement shall be prohibited.
(d) In
no
event shall Holders who have converted Securities into Common Stock be entitled
to receive any Additional Interest with respect to such Common Stock or the
issue price of the Securities converted.
-17-
(e) The
Additional Interest as set forth in this Section 7 shall be the exclusive cash
remedy available to the Holders of Registrable Securities for such Registration
Default. In no event shall the Company be required to pay Additional Interest
in
excess of the applicable maximum amount of one-half of one percent (0.5%) per
annum as set forth above, or eight and one-half percent (8.50%) per annum when
combined with the stated interest on the Securities, regardless of whether
one
or multiple Registration Defaults exist.
8. Underwritten
Offering.
Subject
to any registration obligations outstanding prior to the date hereof, any holder
of Registrable Securities who desires to do so may sell Registrable Securities
(in whole or in part) in an underwritten offering; provided, however, the
Company shall not be required to facilitate an underwritten offering pursuant
to
the Shelf Registration Statement by any holders unless the offering relates
to
at least $27,000,000 principal amount of Securities or the equivalent number
of
shares of Common Stock in which such Securities are convertible. In any such
underwritten offering, the investment banker or investment bankers and manager
or managers (the “Managing
Underwriter”)
that
will administer the offering will be selected by, and the underwriting
arrangements with respect thereto (including the size of the offering) will
be
approved by, the holders of a majority of the Registrable Securities to be
included in such offering; provided,
however,
that
such investment bankers and managers and underwriting arrangements must be
reasonably satisfactory to the Company and that the Company shall not be
required to arrange for or participate in more than two underwritten offerings
during the Effectiveness Period. No holder may participate in any underwritten
offering contemplated hereby unless (a) such holder agrees to sell such holder’s
Registrable Securities to be included in the underwritten offering in accordance
with any approved underwriting arrangements, (b) such holder completes and
executes all reasonable questionnaires, powers of attorney, indemnities,
underwriting agreements, lock-up letters and other documents required under
the
terms of such approved underwriting arrangements and (c) if such holder is
not
then a Notice Holder, such holder returns a completed and signed Notice and
Questionnaire to the Company in accordance with Section 3(a)(ii) hereof within
a
reasonable amount of time before such underwritten offering. The holders
participating in any underwritten offering shall be responsible for any
underwriting discounts and commissions and fees and, subject to Section 4
hereof, expenses of their own counsel. The Company shall pay all expenses
customarily borne by issuers, including but not limited to filing fees, the
fees
and disbursements of its counsel and independent public accountants and any
printing expenses incurred in connection with such underwritten offering.
Notwithstanding the foregoing or the provisions of Section 3(n) hereof, in
connection with a request from the Managing Underwriter or a representative
of a
Majority of Holders to be included in an underwritten offering for the Company
to prepare and file an amendment or supplement to the Shelf Registration
Statement and Prospectus in connection with an underwritten offering, the
Company may delay the filing of any such amendment or supplement for up to
ninety (90) days if the Company is in possession of material non-public
information the disclosure of which would have a material adverse effect on
the
business, operations, prospects, condition (financial or otherwise) of the
Company and its subsidiaries, taken as a whole.
9. Rule
144A and 144.
(a)
The
Company shall use commercially reasonable 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,
the
Company covenants to the Holders of the Registrable Securities that the Company
shall use its reasonable best efforts to make available, upon request of any
holder of Registrable Securities, to such holder or beneficial owner of
Registrable Securities in connection with any sale thereof and any prospective
purchaser of such Registrable Securities designated by such holder or beneficial
owner, the information required by Rule 144A(d)(4) under the Securities Act
in
order to permit resales of such Registrable Securities pursuant to Rule 144A
of
the Securities Act.
-18-
(b)
The
company shall use commercially reasonable efforts to timely file the reports
required to be filed by it under the Exchange Act or the Securities Act
(including the reports under Section 13 and 15(d) of the Exchange Act referred
to in subparagraph (c)(1) of Rule 144 of the Securities Act) and the rules
and
regulations adopted by the Commission thereunder, all to the extent required
from time to time to enable such Holder to sell Registrable Securities without
registration under the Securities Act within the limitations of the exemption
provided by Rule 144 under the Securities Act, as such may be amended from
time
to time, or any similar or successor rule or regulation hereafter adopted by
the
Commission. Upon the request of any Holder of Registrable Securities in
connection with that Holder’s sale pursuant to Rule 144, the Company shall
deliver to such Holder a written statement as to whether it had complied with
such requirements.
(c)
Notwithstanding the foregoing, nothing in this Section 9 shall be deemed to
require the Company to register any of its Securities pursuant to the Exchange
Act.
10. Miscellaneous.
(a) Specific
Performance.
The
parties hereto acknowledge that there would be no adequate remedy at law if
the
Company fails to perform any of its obligations hereunder and that the Initial
Purchasers and the Holders from time to time may be irreparably harmed by any
such failure, and accordingly agree that the Initial Purchasers and such
Holders, in addition to any other remedy to which they may be entitled at law
or
in equity and without limiting the remedies available to the Notice Holders
under Section 7 hereof, shall be entitled to compel specific performance of
the
obligations of the Company under this Agreement in accordance with the terms
and
conditions of this Agreement, in any court of the United States or any State
thereof having jurisdiction.
(b) Amendments
and Waivers.
This
Agreement, including this Section 10(b), may be amended, and waivers or consents
to departures from the provisions hereof may be given, only by a written
instrument duly executed by the Company and a Majority of Holders provided
that
any amendment that adversely affects the Initial purchasers shall also require
the consent of the Initial Purchasers. Each Holder of Registrable Securities
outstanding at the time of any such amendment, waiver or consent or thereafter
shall be bound by any amendment, waiver or consent effected pursuant to this
Section 10(b), whether or not any notice, writing or marking indicating
such amendment, waiver or consent appears on the Registrable Securities or
is
delivered to such Holder.
(c) Other
Registration Rights.
The
Company may in the future grant registration rights that would permit any Person
that is a third party the right to piggy-back on any Shelf Registration
Statement; provided that if the Managing Underwriter, if any, of such offering
notifies the Notice Holders that the total amount of securities which they
and
the holders of such piggy-back rights intend to include in any Shelf
Registrations Statement is so large as to materially adversely affect the
success of such offering (including the price at which such securities can
be
sold), then only the amount, the number or kind of securities to be offered
for
account of holders of such piggy-back rights will be reduced to the extent
necessary to reduce the total amount of securities to be included in such
offering to the amount, number or kind recommended by the Managing Underwriter
prior to the reduction in the amount of Registrable Securities to be
included.
(d) Third
Party Beneficiary.
The
holders of Registrable Securities shall be third party beneficiaries to the
agreements made hereunder between the Company, on the one hand, and the Initial
Purchasers, 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 its rights or the rights of holders of Registrable
Securities hereunder.
-19-
(e) Notices.
All
notices and other communications provided for or permitted hereunder shall
be
made in writing, shall be delivered by hand delivery, by telecopier, by courier
guaranteeing overnight delivery or by first-class mail, return receipt
requested, and shall be deemed given (i) when made, if made by hand delivery,
(ii) upon confirmation, if made by telecopier (provided notice is also given
by
some other means permitted by this Section 10(e)), (iii) one Business Day after
being deposited with such courier, if made by overnight courier, or (iv) on
the
date indicated on the notice of receipt, if made by first-class mail, to the
parties as follows:
|
(x)
|
if
to a Holder of Registrable Securities, at the address that appears
in the
security register maintained pursuant to the Indenture (in the case
of
holders of Notes) and at the address maintained by the Company’s transfer
agent (in the case of holders of
shares);
|
|
(y)
|
if
to the Company, to:
|
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, #▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
Secretary
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
with
a
copy to:
▇▇▇▇▇▇
Godward Kronish LLP
▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇-▇▇▇▇▇▇▇ aMarca
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
| (z) |
if
to the Initial Purchasers, to (i) CRT Capital Group LLC, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and (ii) to ▇▇▇▇▇▇▇
&
Company LLC, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇, ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇ ▇▇▇▇;
|
with
a
copy to:
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ LLP
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
-20-
or
to
such other address as such person may have furnished to the other persons
identified in this Section 10(e) in writing in accordance herewith.
(f) Parties
in Interest.
The
parties to this Agreement intend that all Holders of Registrable Securities
shall be entitled to receive the benefits of this Agreement and that any Notice
Holder shall be bound by the terms and provisions of this Agreement by reason
of
such election with respect to the Registrable Securities which are included
in a
Shelf Registration Statement. All of the terms and provisions of this Agreement
shall be binding upon, shall inure to
the
benefit of and shall be enforceable by the respective successors and assigns
of
the parties hereto and any Holder from time to time of the Registrable
Securities to the aforesaid extent. In the event that any transferee of any
Holder of Registrable Securities shall acquire Registrable Securities, in any
manner, whether by gift, bequest, purchase, operation of law or otherwise,
such
transferee shall, without any further writing or action of any kind, be entitled
to receive the benefits of and, if a Notice Holder, be conclusively deemed
to
have agreed to be bound by and to perform all of the terms and provisions of
this Agreement to the aforesaid extent.
(g) Counterparts;
Facsimile Signatures.
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. Facsimile signatures shall constitute original signatures for
all purposes of this Agreement.
(h) Headings.
The
headings in this Agreement are for convenience of reference only and shall
not
limit or otherwise affect the meaning hereof.
(i) Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York, without giving effect to any provisions relating to conflicts
of law.
(j) Severability.
In the
event that any one or more of the provisions contained herein, or the
application thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions hereof shall not be in any way impaired or affected thereby, it
being
intended that all of the rights and privileges of the parties hereto shall
be
enforceable to the fullest extent permitted by law.
(k) Survival.
The
respective indemnities, agreements, covenants, representations, warranties
and
other provisions set forth in this Agreement or made pursuant hereto shall
remain in full force and effect, regardless of any investigation (or any
statement as to the results thereof) made by or on behalf of the Initial
Purchasers, any Holder, or any officer, director, partner, employee,
representative or agent of the Initial Purchasers or Holder, any agent or
underwriter, any officer, director, partner, employee, representative or agent
of such agent or underwriter, or any controlling person of any of the foregoing,
and shall survive the transfer and registration of the Registrable Securities
of
such Holder.
-21-
11. Submission
to Jurisdiction; Appointment of Agent for Service.
The
Company agrees that any suit, action or proceeding against the Company arising
out of or based upon this Agreement or the transactions contemplated hereby
may
be instituted in any state or federal court in The City of New York, New York,
and waives any objection which it may now or hereafter have to the laying of
venue of any such proceeding, and irrevocably submits to the non-exclusive
jurisdiction of such courts in any suit, action or proceeding. The Company
expressly accepts the non-exclusive jurisdiction of any such court in respect
of
any such suit, action or proceeding. The Company agrees that a final judgment
in
any such proceeding brought in any such court shall be conclusive and binding
thereupon and may be enforced
in any other court in the jurisdiction to which the Company is or may be subject
by suit upon such judgment.
[Remainder
of Page Intentionally Left Blank]
-22-
Please
confirm that the foregoing correctly sets forth the agreement between the
Company and you.
|
Very
truly yours,
|
||
| |
|
|
| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |
|
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ |
||
| Title: Chairman and Chief Executive Officer | ||
Accepted
as of the date hereof:
CRT
CAPITAL GROUP LLC
By:
/s/
▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇
Title: Managing
Director
▇▇▇▇▇▇▇
& COMPANY, LLC
By:
/s/
▇▇▇▇▇▇
▇▇▇▇
Name: ▇▇▇▇▇▇
▇▇▇▇
Title: Managing
Director
[Signature
Page to Registration Rights Agreement]
-23-
APPENDIX
A
8%
CONVERTIBLE
SENIOR
NOTES DUE 2011
SELLING
SECURITY HOLDER
NOTICE
AND QUESTIONNAIRE
The
undersigned beneficial holder (the “Selling Security Holder”) of 8%
Convertible Senior
Notes due 2011 (the “Notes”) of Acquicor Technology Inc. ( the “Company”) or
shares of common stock, par value $0.0001, of the Company issuable upon
conversion of the Notes (together with the Notes, the “Registrable Securities”),
understands that the Company has filed or intends to file with the Securities
and Exchange Commission (the “SEC”) 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 (the “Registration Agreement”), dated as of December 19, 2006 between
the Company and the Initial Purchasers named therein. A copy of the Registration
Agreement is available from the Company upon request at the address set forth
below. All capitalized terms not otherwise defined herein shall have the meaning
ascribed thereto in the Registration Agreement.
In
order
to sell or otherwise dispose of any Registrable Securities pursuant to the
Shelf
Registration Statement, a beneficial owner of Registrable Securities will be
required to be named as a selling security holder in the related prospectus,
deliver the prospectus to purchasers of Registrable Securities and be bound
by
those provisions of the Registration Agreement applicable to such beneficial
owner (including certain indemnification provisions thereof). In order to have
Registrable Securities included in the Shelf Registration Statement, this Notice
and Questionnaire must be completed, executed and delivered to the Company
at
the address specified below ON
OR BEFORE ●,
2007.
Beneficial owners of Registrable Securities who do not complete, execute and
return this Notice and Questionnaire (i) will not be named as selling security
holders in the Shelf Registration Statement and (ii) may not use the related
prospectus for resales of Registrable Securities. Beneficial owners are
encouraged to complete and deliver this Notice and Questionnaire prior to the
effectiveness of the Shelf Registration Statement.
Certain
legal consequences arise from being named as selling security holders 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 security holder in the Shelf Registration Statement and
the
related prospectus.
A-1
Election
The
undersigned Selling Security Holder of Registrable Securities hereby elects
to
include in the Shelf Registration Statement the Registrable Securities
beneficially owned by it and listed below in Item (3) (unless otherwise
specified under Item (3)). The undersigned, by signing and returning this
Notice and Questionnaire, agrees to be bound by the terms and conditions of
this
Notice and Questionnaire and the Registration Agreement, including without
limitation, Section 5 of the Registration Agreement, as if the undersigned
were an original party thereto.
Upon
any
sale of Registrable Securities pursuant to the Shelf Registration Statement,
the
undersigned agrees to deliver to the Company and the Trustee the Notice of
Transfer (completed and signed) set forth on Exhibit 1 to this Notice and
Questionnaire.
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 Security Holder:
______________________________________________________________________________________
(b)
Full
legal name of registered holder (if not the same as (a) above) through which
Registrable Securities listed
in
Item (3) below are held (if the Registrable 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 Registrable
Securities listed in Item (3)
below
are held:
______________________________________________________________________________________
(d)
Full
legal name of DTC Participant (if applicable and if not the same as (b) or
(c)
above) through which Registrable
Securities listed in Item (3) below are held:
______________________________________________________________________________________
(e)
State
whether the Selling Security Holder is a publicly-held entity or a subsidiary
of
a publicly-held entity
(i.e., an entity that has a class of securities registered under the Securities
Exchange Act of 1934, as amended):
Yes
____
No ____
If
a
subsidiary of a publicly-held entity, please identify the publicly-held parent
entity: ________________
______________________________________________________________________________________
(f)
State
whether the Selling Security Holder is an investment company or a subsidiary
of
an investment company
registered under the Investment Company Act of 1940:
Yes
____
No ____
If
a
subsidiary of an investment company, please identify the investment company
parent entity: ________
______________________________________________________________________________________
A-2
(g)
If
you answered “No” to questions (e) and (f),
state
the number of natural persons, publicly-held entities
or investment companies who have or share voting or investment control over
the
Registrable Securities:
_________________.
If
your
answer is 5 or fewer, please identify those natural persons, publicly-held
entities or investment companies:
______________________________________________________________________________________
______________________________________________________________________________________
______________________________________________________________________________________
Please
note that the SEC requires that these persons or entities be named in the
prospectus.
2. Address
for Notices to Selling Security Holder:
______________________________________________________________________________________
______________________________________________________________________________________
Telephone:_____________________________________________________________________________
Fax:
__________________________________________________________________________________
Contact
Person:_________________________________________________________________________
3. Beneficial
Ownership of Registrable Securities:
Except
as
set forth below in this Item (3), the undersigned does not own any Notes or
shares of common stock
issued upon conversion, repurchase or redemption of any Notes.
Principal
amount (or number of shares) of Registrable Securities beneficially owned:
_________________
______________________________________________________________________________________
CUSIP
No(s). of such Registrable Securities beneficially owned:
__________________________________
Number
of
shares of common stock (if any) issued upon conversion, repurchase or redemption
of Registrable
securities:
____________________________________________________________________
Unless
otherwise indicated in the space provided below, all Notes and all shares of
common stock listed in response
to Item (3)(a) above, and all shares of common stock issuable upon conversion
repurchase of redemption
of the Notes listed in response to Item (3)(a) above, will be included in the
Shelf Registration Statement.
If the undersigned does not wish all such Notes or shares of common stock to
be
so included, please
indicate below the principal amount or the number of shares to be
included:
______________________________________________________________________________________
______________________________________________________________________________________
4. Beneficial
ownership of other securities of the Company owned by the Selling Security
Holder:
Except
as set forth below in this Item (4), the undersigned is not the beneficial
or
registered owner of any securities
of the Company other than the Registrable Securities listed above in Item
(3).
(a)
Type
and amount of other securities of the Company beneficially owned by the Selling
Security Holder:
______________________________________________________________________________________
______________________________________________________________________________________
(b)
CUSIP
No(s). of such other securities of the Company beneficially owned:
______________________________________________________________________________________
______________________________________________________________________________________
A-3
5. Relationship
with the Company:
Except
as set forth below, neither the undersigned nor any of its affiliates, directors
or principal equity holders
(5% or more) has held any position or office or has had any other material
relationship with the Company
(or its predecessors or affiliates) during the past three
years.
State
any
exceptions here:
______________________________________________________________________________________
______________________________________________________________________________________
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 or broker-dealers or agents. If the
Registrable Securities are sold through underwriters or broker-dealers, the
Selling Security Holder will be responsible for underwriting discounts or
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 crosses or 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 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 in the course
of
hedging positions they assume. The Selling Security holders may also sell
Registrable Securities short and deliver Registrable Securities to close out
such short positions, or loan or pledge Registrable Securities to broker-dealers
that in turn may sell such securities. The Selling Security Holder may pledge
or
grant security interest in some or all of the Registrable 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 Registrable Securities from time
to
time pursuant to the prospectus. The Selling Security Holder 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 security holder
for
purposes of the prospectus.
State
any
exceptions here:
______________________________________________________________________________________
______________________________________________________________________________________
Note:
In
no event will such method(s) of distribution take the form of an underwritten
offering of the Registrable
Securities without the prior agreement of the Company.
7. (a)
State
whether the Selling Security Holder will enter into “hedging
transactions.”
Yes
____
No ____
If
yes,
you must provide a complete description of the hedging transactions into which
the Selling Security Holder
will enter and the purpose of such hedging transactions.
______________________________________________________________________________________
______________________________________________________________________________________
______________________________________________________________________________________
______________________________________________________________________________________
A-4
Please
note that the SEC may deem short sales of securities covered by a registration
statement prior to
the effectiveness of such registration statement as a violation of Section
5 of
the Securities Act.
8. (a)
State
whether the Selling Security Holder is a registered broker-dealer.
Yes
____
No ____
(b)
State
whether the Selling Security Holder received the Registrable Securities as
compensation for underwriting
activities and, if so, provide a brief description of the transaction(s)
involved.
Yes
____
No ____
______________________________________________________________________________________
______________________________________________________________________________________
The
SEC requires that all Selling Security Holders that are broker-dealers and
that
did not receive the Registrable Securities as compensation for underwriting
activities must be named as underwriters in the prospectus for the Registrable
Securities. Selling Security Holders, including those named as underwriters,
must deliver copies of the prospectus to purchasers at or prior to the time
of
any sale of the Registrable Securities.
(c)
State
whether the Selling Security Holder is an affiliate of a registered
broker-dealer and if so, list the name(s)
of the broker-dealer affiliate(s).
Yes
____
No ____
______________________________________________________________________________________
______________________________________________________________________________________
If
the answer is “Yes,” you must answer question (d) below.
(d)
If
the Selling Security Holder is an affiliate of a registered
broker-dealer:
(i)
Did
the Selling Security Holder purchase the Registrable Securities in the ordinary
course of business?
Yes
____
No ____
If
the
answer is “No,” to question (i) state any exceptions below:
______________________________________________________________________________________
______________________________________________________________________________________
(ii)
At
the time of the purchase of the Registrable Securities, did the Selling Security
Holder have any
agreements or understandings, directly or indirectly, with any person to
distribute the Registrable
Securities?
Yes
____
No ____
If
the
answer is “Yes” to question (ii), state any exceptions below:
______________________________________________________________________________________
______________________________________________________________________________________
A-5
If
the
answer is “No” to question (i) or “Yes” to question (ii), you will be named as
an underwriter in the prospectus
relating to the Registrable Securities.
________________________________
By
signing below, 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 and regulations thereunder relating to stock
manipulation, particularly Regulation M thereunder (or any successor rules
or
regulations) and the provisions of the Securities Act, including without
limitation those relating to prospectus delivery, 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.
In
the
event that the Selling Security Holder transfers all or any portion of the
Registrable Securities listed in Item (3) above after the date on which such
information is provided to the Company, the Selling Security Holder agrees
to
notify the transferee(s) at the time of the transfer of its rights and
obligations under this Notice and Questionnaire and the Registration
Agreement.
In
accordance with the undersigned’s obligation under the Registration 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
is required to remain effective. All notices hereunder and pursuant to the
Registration 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 (8) 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.
Once
this
Notice and Questionnaire is executed by the Selling Security Holder 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
Security Holder (with respect to Registrable Securities beneficially owned
by
such Selling Security Holder and listed in Item (3) above). This agreement
shall
be governed in all respects by the laws of the State of New York.
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.
Beneficial
Owner
By:
_______________________________________
Name:
_____________________________________
Title:
______________________________________
Dated:
_____________________________________
PLEASE
RETURN THE COMPLETED AND EXECUTED
NOTICE
AND QUESTIONNAIRE TO:
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Phone: (▇▇▇)
▇▇▇-▇▇▇▇
Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇
Attention: Corporate
Secretary
WITH
A COPY TO:
▇▇▇▇▇▇
Godward Kronish llp
▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
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Attention:
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A-6