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PLATINUM technology, inc.
REGISTRATION RIGHTS AGREEMENT
Dated as of
December 15, 1997
Deutsche Xxxxxx Xxxxxxxx Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
PLATINUM technology, inc., a Delaware corporation (the "Company"), proposes
to issue and sell to Deutsche Xxxxxx Xxxxxxxx Inc. and Xxxxxxxxx, Xxxxxx &
Xxxxxxxx Securities Corporation (the "Initial Purchasers") upon the terms set
forth in a purchase agreement dated December 11, 1997 (the "Purchase Agreement")
between the Initial Purchasers and the Company, its 6.25% Convertible
Subordinated Notes due 2002. As an inducement to the Initial Purchasers to enter
into the Purchase Agreement and in satisfaction of a condition to the
obligations of the Initial Purchasers thereunder, the Company agrees with the
Initial Purchasers, (i) for the benefit of the Initial Purchasers and (ii) for
the benefit of the Holders (as defined below) from time to time of the
Registrable Securities (as defined below), including the Initial Purchasers, as
follows:
1. Definitions. Capitalized terms used herein without definition shall
have their respective meanings set forth in or pursuant to the Purchase
Agreement or the Offering Memorandum, issued December 11, 1997, in respect of
the Securities. As used in this Agreement, the following capitalized defined
terms shall have the following meanings:
"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.
"Agreement" shall mean this Registration Rights Agreement as the same may
be amended, supplemented or modified from time to time in accordance with the
terms hereof.
"Commission" means the United States Securities and Exchange Commission.
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"Common Stock" means the common stock, $0.001 par value, of the Company and
any other shares of common stock as may constitute "Common Stock" for purposes
of the Indenture.
"DTC" means The Depository Trust Company.
"Effectiveness Period" has the meaning set forth in Section 2(b) hereof.
"Exchange Act" means the United States Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"Holder" shall mean 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" shall mean the Indenture, dated as of December 15, 1997,
between the Company and the Trustee thereunder, pursuant to which the Securities
are being issued, as amended, modified or supplemented from time to time in
accordance with the terms thereof.
"Issue Date" means December 16, 1997
"Additional Interest" has the meaning set forth in Section 2(c).
"Person" shall mean an individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political subdivision
thereof.
"Prospectus" means the prospectus included in any Shelf Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Securities Act), as
amended or supplemented by any prospectus supplement and including all material
incorporated by reference therein, with respect to the terms of the offering of
any portion of the Registrable Securities.
"Registration Default" has the meaning set forth in Section 2(c) hereof.
"Restricted Securities" shall mean all Securities required pursuant to the
Indenture to bear any Restricted Securities Legend (as defined in the
Indenture).
"Registrable Security" shall mean any Restricted Security and any share of
Common Stock issuable upon conversion thereof except any such Restricted
Security or share of Common Stock which (i) has been effectively registered
under the Securities Act and sold in a manner contemplated by the Registration
Statement, (ii) has been transferred in compliance with Rule 144 under the
Securities Act (or any successor provision thereto), or is transferable
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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 the Indenture.
"Rule 144" shall mean Rule 144 promulgated by the Commission pursuant to
the Securities Act, as such Rule may be amended from time to time, or any
successor rule or regulation.
"Rule 144A" shall mean Rule 144A promulgated by the Commission pursuant to
the Securities Act, as such Rule may be amended from time to time, or any
successor rule or regulation.
"Rule 415" shall mean Rule 415 promulgated by the Commission pursuant to
the Securities Act, as such Rule may be amended from time to time, or any
successor rule or regulation.
"Rule 430A" shall mean Rule 430A promulgated by the Commission pursuant to
the Securities Act, as such Rule may be amended from time to time, or any
successor rule or regulation.
"Securities" shall mean the $150,000,000 aggregate principal amount of
6.25% Convertible Subordinated Notes due 2002 of the Company being issued
pursuant to the Indenture (together with up to $22,500,000 aggregate principal
amount of such convertible subordinated notes if, and to the extent, the Initial
Purchasers' over-allotment option is exercised).
"Securities Act" means the United States Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
"Shelf Registration" means a registration effected pursuant to Section 2
hereof.
"Shelf Registration Statement" means a shelf registration statement of the
Company pursuant to the provisions of Section 2 hereof filed with the Commission
which covers some or all of the Registrable Securities, as applicable, on an
appropriate form under Rule 415 under the Securities Act, or any similar rule
that may be adopted by the Commission, as amended by any amendments and
supplements to such registration statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference therein.
"Trust Indenture Act" has the meaning set forth in Section 1.1 of the
Indenture.
"Trustee" means the Trustee under the Indenture.
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2. Shelf Registration.
(a) The Company shall, within 90 calendar days following the Issue
Date of the Securities, file with the Commission a Shelf Registration Statement
relating to the offer and sale of the Registrable Securities by the Holders from
time to time in accordance with the methods of distribution elected by such
Holders and set forth in such Shelf Registration Statement and, thereafter,
shall use its reasonable efforts to cause such Shelf Registration Statement to
be declared effective under the Securities Act as soon as practicable, and in
any event within 180 calendar days after the Issue Date.
(b) The Company shall use its reasonable efforts:
(i) To keep the Shelf Registration Statement continuously
effective in order to permit the Prospectus forming part thereof to be
usable by Holders for a period of two years from the later of a) the Issue
Date or b) the last date of original issuance of the Securities or such
shorter period that will terminate upon the earliest of the following: (A)
when all the Securities covered by the Shelf Registration Statement have
been sold pursuant to the Shelf Registration Statement, (B) when all shares
of Common Stock issued upon conversion of any such Securities that had not
been sold pursuant to the Shelf Registration Statement have been sold
pursuant to the Shelf Registration Statement and (C) when there shall cease
to be outstanding Registrable Securities (in any such case, such period
being called the "Effectiveness Period"); and
(ii) After the effectiveness of the Shelf Registration Statement,
promptly upon the request of any Holder, to take any action reasonably
necessary to register the sale of any Registrable Securities of such Holder
and to identify such Holder as a selling securityholder.
The Company shall be deemed not to have used its reasonable efforts to keep the
Shelf Registration Statement effective during the requisite period if the
Company voluntarily takes any action that would result in Holders of Registrable
Securities covered thereby not being able to offer and sell any such Registrable
Securities during that period, unless (i) such action is required by applicable
law, (ii) the continued effectiveness of the Shelf Registration Statement or use
thereof for disposition of Registrable Securities would require the Company to
disclose a material financing, acquisition or other corporate transaction, and
the Board of Directors shall have determined in good faith that such disclosure
is not in the best interests of the Company and the holders of its outstanding
Common Stock, or (iii) the Board of Directors shall have determined in good
faith that there is a valid business purpose or reason for such suspension, and
(x), in the case of clause (i) above, the Company thereafter promptly complies
with the requirements of paragraph 3 (i) below and (y) the Company complies with
its obligations, if any, to pay Additional Interest.
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(c) (1) If (i) on or prior to 90 days following the Issue Date a
Shelf Registration Statement has not been filed with the Commission or (ii) on
or prior to the 180th day following the Issue Date, such Shelf Registration
Statement is not declared effective (each, a "Registration Default"), additional
interest ("Additional Interest") will accrue on the Restricted Securities from
and including the date following such Registration Default until such time as
such Shelf Registration Statement is filed or such Shelf Registration Statement
is declared effective, as the case may be. Additional Interest will be paid
semi-annually in arrears, with the first semi-annual payment due on the first
Interest Payment Date under the Indenture following the date on which such
Additional Interest begins to accrue, and will accrue at a rate per annum equal
to an additional one-quarter of one percent (0.25%) of the principal amount, to
and including the 90th day following such Registration Default and one-half of
one percent (0.50%) of the principal amount thereof from and after the 91st day
following such Registration Default. Following the cure of all Registration
Defaults relating to any Restricted Securities, the accrual of Additional
Interest with respect to such Restricted Securities will cease (without in any
way limiting the effect of any subsequent Registration Default). In addition, in
the event that Shelf Registration Statement ceases to be effective for more than
90 days or the Company suspends the use of the prospectus which is a part
thereof for more than 90 days, in each case, whether or not consecutive, during
any 12-month period, then the interest rate borne by Restricted Securities will
increase by an additional one-half of one percent (0.50%) of the principal
amount per annum from the 91st day of the applicable 12-month period such Shelf
Registration Statement ceases to be effective or the Company suspends the use of
the prospectus which is a part thereof, as the case may be, until the earlier of
such time as (i) the Shelf Registration Statement again becomes effective, (ii)
the use of the related prospectus ceases to be suspended or (iii) the
Effectiveness Period expires. 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 (0.50%) as set forth above, regardless of whether one or multiple
Registration Defaults exist.
(2) Additional Interest on the Restricted Securities shall be
paid by the Company to the holders of record of such Restricted Securities on
each Interest Payment Date (as defined in the Indenture) in the same manner as
for interest on such Restricted Securities as provided in the form of Securities
set forth in Section 2.2 of the Indenture.
(3) All of the Company's obligations set forth in this Section
2(c) which are unsatisfied to any extent with respect to any Restricted Security
at the time such security ceases to be a Restricted Security shall survive until
such time as all such obligations with respect to such security have been
satisfied in full (notwithstanding the earlier termination of this Agreement).
(4) Any payments due and payable pursuant to this Section 2(c)
shall be subordinated to Senior Indebtedness (as defined in the Indenture) to
the extent and in the manner set forth in the Indenture.
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(5) The rights of the recordholders of Restricted Securities to
Additional Interest as set forth in this Section 2(c) are not intended to be
exclusive of any other right or remedy for the breach by the Company of this
Agreement, and shall be in addition to every other right and remedy given
hereunder or under the Indenture or now or hereafter existing at law or in
equity or otherwise.
3. Registration Procedures. In connection with any Shelf Registration
Statement, the following provisions shall apply:
(a) The Company shall furnish to the Holders (if requested), prior to
the filing thereof with the Commission, a copy of any Shelf Registration
Statement, and each amendment thereof and each amendment or supplement, if
any, to the Prospectus included therein and shall use its reasonable
efforts to reflect in each such document, when so filed with the
Commission, such comments as the Holders reasonably may propose.
(b) The Company shall take such action as may be necessary so that (i)
any Shelf Registration Statement and any amendment thereto and any
Prospectus forming part thereof and any amendment or supplement thereto
(and each report or other document incorporated therein by reference in
each case) complies in all material respects with the Securities Act and
the Exchange Act, (ii) any Shelf Registration Statement and any amendment
thereto does not, when it becomes effective, contain an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading and
(iii) any Prospectus forming part of any Shelf Registration Statement does
not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements, in the light of
the circumstances under which they were made, not misleading.
(c) (1) The Company shall advise the Initial Purchasers and, in the
case of clause (i), the Holders and, if requested by any Initial Purchaser
or any such Holder, confirm such advice in writing:
(i) when a Shelf Registration Statement and any amendment
thereto has been filed with the Commission and when the Shelf
Registration Statement or any post effective amendment thereto
has become effective; and
(ii) of any request by the Commission for amendments or
supplements to the Shelf Registration Statement or the Prospectus
included therein or for additional information.
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(2) The Company shall advise the Holders and, if requested by
any such Holder, confirm such advice in writing of:
(i) the issuance by the Commission of any stop order
suspending effectiveness of the Shelf Registration Statement or
the initiation of any proceedings for that purpose;
(ii) the receipt by the Company of any notification with
respect to the suspension of the qualification of the securities
included therein for sale in any jurisdiction or the initiation
of any proceeding for such purpose; and
(iii) the happening of any event that requires the making of
any changes in the Shelf Registration Statement or the Prospectus
so that, as of such date, the Shelf Registration Statement and
the Prospectus do not contain an untrue statement of a material
fact and do not omit to state a material fact required to be
stated therein or necessary to make the statements therein (in
the case of the Prospectus, in light of the circumstances under
which they were made) not misleading (which advice shall be
accompanied by an instruction to suspend the use of the
Prospectus until the requisite changes have been made).
(d) The Company shall use its reasonable efforts to prevent the
issuance, and if issued to obtain the withdrawal, of any order suspending
the effectiveness of any Shelf Registration Statement at the earliest
possible time.
(e) The Company shall furnish to each Holder (if requested) with
respect to a Shelf Registration Statement, without charge, at least one
copy of such Shelf Registration Statement and any post-effective amendment
thereto, including financial statements and schedules, and, if the Holder
so requests in writing, all reports, other documents and exhibits
(including those incorporated by reference).
(f) The Company shall, during the Effectiveness Period, deliver to
each Holder with respect to a Shelf Registration Statement, without charge,
as many copies of the Prospectus (including each preliminary Prospectus)
included in such Shelf Registration Statement and any amendment or
supplement thereto as such Holder may reasonably request, and the Company
consents (except during the continuance of any event described in Section
3(c)(2)(iii)) to the use of the Prospectus thereto by each of the Holders
in connection with the offering and sale of the Registrable Securities
covered by the Prospectus thereto during the Effectiveness Period.
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(g) Prior to any offering of Registrable Securities pursuant to any
Shelf Registration Statement, the Company shall register or qualify or
cooperate with the Holders in connection with the registration or
qualification of such Registrable Securities for offer and sale under the
securities or blue sky laws of such jurisdictions as any such Holders
reasonably request in writing and do any and all other acts or things
necessary or advisable to enable the offer and sale in such jurisdictions
of the Registrable Securities covered by such Shelf Registration Statement;
provided, however, that in no event shall the Company be obligated to (i)
qualify as a foreign corporation or as a dealer in securities in any
jurisdiction where it would not otherwise be required to so qualify but for
this Section 3(g), (ii) file any general consent to service of process in
any jurisdiction where it is not as of the date hereof then so subject or
(iii) subject itself to taxation in any jurisdiction if it is not so
subject.
(h) The Company shall cooperate with the Holders to facilitate the
timely preparation and delivery of certificates representing Registrable
Securities sold or to be sold pursuant to any Shelf Registration Statement
free of any restrictive legends and in such permitted denominations and
registered in such names as Holders may reasonably request in connection
with the sale of Registrable Securities pursuant to such Shelf Registration
Statement.
(i) Upon the occurrence of any event contemplated by paragraph
3(c)(2)(iii) above, the Company shall promptly prepare a post-effective
amendment to any Shelf Registration Statement or an amendment or supplement
to the related Prospectus or file any other required documents so that, as
thereafter delivered to purchasers of the Registrable Securities included
therein, the Prospectus will not include an untrue statement of a material
fact or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. If the Company notifies the Holders of the occurrence of any
event contemplated by paragraph 3(c)(2)(iii) above, the Holders shall
suspend the use of the Prospectus until the requisite changes to the
Prospectus have been made.
(j) Not later than the effective date of any Shelf Registration
Statement hereunder, the Company shall provide a CUSIP number for the
Securities registered under such Shelf Registration Statement.
(k) The Company shall use its reasonable efforts to comply with all
applicable rules and regulations of the Commission and shall make generally
available to their securityholders or otherwise provide in accordance with
Section 11(a) of the Securities Act as soon as practicable after the
effective date of the applicable Shelf Registration Statement an earnings
statement satisfying the provisions of Section 11(a) of the Securities Act.
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(l) The Company shall cause the Indenture and the Securities to be
qualified under the Trust Indenture Act in a timely manner; and in
connection with such qualification, the Company shall cooperate with the
Trustee under the Indenture and the Holders (as defined in the Indenture)
to effect such changes to the Indenture as may be required for such
Indenture to be so qualified in accordance with the terms of the Trust
Indenture Act; and the Company shall execute and use all reasonable 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.
(m) The Company may require each Holder with respect to a Shelf
Registration Statement to furnish to the Company such information regarding
the Holders and the distribution of Registrable Securities held by such
Holder as may be required by applicable law or regulation for inclusion in
such Shelf Registration Statement (including, without limitation, the
information required by Item 507 of Regulation S-K of the Securities Act),
and the Company may exclude from such registration the Registrable
Securities of any Holder that fails to furnish such information within a
reasonable time after receiving such request unless, and until such time
as, such information is furnished by such Holder.
(n) The Company shall make reasonably available for inspection by one
representative of the Holders designated in writing by the Holders of a
majority of the Registrable Securities to be registered thereunder, any
underwriter participating in any disposition pursuant to such Shelf
Registration Statement, and any attorney, accountant or other agent
retained by such representative or any such underwriter all relevant
financial and other records, pertinent corporate documents and properties
of the Company and its subsidiaries;
(o) The Company shall cause the Company's officers, directors and
employees to make reasonably available for inspection all relevant
information reasonably requested by such representative or any such
underwriter, attorney, accountant or agent in connection with any such
Shelf Registration Statement, in each case, as is customary for similar due
diligence examinations; provided, however, that any information that is
designated in writing by the Company, in good faith, as confidential at the
time of delivery of such information shall be kept confidential by such
representative, any Holders or any such underwriter, attorney, accountant
or agent, unless such disclosure is made in connection with a court
proceeding or required by law, or such information becomes available to the
public generally or through a third party without an accompanying
obligation of confidentiality;
(p) The Company will use its reasonable efforts to cause the Common
Stock issuable upon conversion of the Securities to be listed on the Nasdaq
National Market
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or other stock exchange or trading system on which the Common Stock
primarily trades on or prior to the effective date of any Shelf
Registration Statement hereunder.
(q) In the event that any broker-dealer registered under the Exchange
Act shall underwrite any Registrable Securities or participate as a member
of an underwriting syndicate or selling group or "assist in the
distribution" (within the meaning of the Conduct Rules and the By-laws of
the National Association of Securities Dealers, Inc. ("NASD")) thereof,
whether as a Holder of such Registrable Securities or as an underwriter, a
placement or sales agent or a broker or dealer in respect thereof, or
otherwise, assist such broker-dealer in complying with the requirements of
such Rules and By-Laws, including, without limitation, by (A) such Rules or
By-Laws shall so require, engaging a "qualified independent underwriter"
(as defined in Rule 2720) to participate in the preparation of the Shelf
Registration Statement relating to such Registrable Securities and to
exercise usual standard of due diligence in respect thereto, (B)
indemnifying any such qualified independent underwriter to the extent of
the indemnification of underwriters provided in Section 5 hereof and (C)
providing such information to such broker-dealer as may be required in
order for such broker-dealer to comply with the requirements of the Conduct
Rules of the NASD.
(r) Notwithstanding any provision of this Section 3 to the contrary,
the Company shall not be required to amend or supplement the Shelf
Registraton Statement pursuant to the requirements of Sections 3(b), 3(c)
or 3(i) hereof if (i) such amendment or supplement would require the
Company to disclose a material financing, acquisition or corporate
transaction and the Board of Directors shall have determined that such
disclosure is not in the best interest of the Company and the holders of
its outstanding Common Stock or (ii) the Board of Directors shall have
determined in good faith that there is a valid business purpose or reason
for suspending the use of the Prospectus included in such Shelf
Registration Statement in accordance with Section 3(i) hereof instead of
making such amendment or supplement, provided that in each case the Company
complies with its obligations, if any, to pay Additional Interest.
4. Registration Expenses. The Company shall bear all fees and expenses
incurred in connection with the performance of its obligations under Sections 2
and 3 hereof.
5. Indemnification and Contribution. (a) In connection with any Shelf
Registration Statement, the Company shall indemnify and hold harmless each
Holder, the Initial Purchasers, each underwriter who participates in an offering
of Registrable Securities, each person, if any, who controls any of such parties
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act and each of their respective directors, officers,
employees,trustees and agents, as follows:
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(i) against any and all losses, liabilities, claims, damages and
expenses whatsoever, including any amounts paid in settlement of any
investigation, litigation, proceeding or claim, joint or several, as
incurred, arising out of any untrue statement or alleged untrue statement
of a material fact contained in any Shelf Registration Statement covering
Registrable Securities, or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact contained in any Prospectus or
the omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, that the Company
shall not be liable under this clause (i) for any settlement of any action
effected without its written consent, which consent shall not be
unreasonably withheld; and
(ii) against any and all expenses whatsoever, as incurred (including
reasonable fees and disbursements of counsel chosen by such Holder or any
such underwriter (except to the extent otherwise expressly provided in
Section 5(c) hereof)), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by any
court or governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such expense
is not paid under subparagraph (i) of this Section 5(a);
provided that this indemnity shall not apply to any loss, liability, claim,
damage or expense to the extent arising out of an untrue statement or omission
or alleged untrue statement or omission made in reliance upon and in conformity
with written information furnished to the Company by such Holder or any
underwriter in writing expressly for use in the Shelf Registration Statement or
any Prospectus. Any amounts advanced by the Company to an indemnified party
pursuant to this Section 5 as a result of such losses shall be returned to the
Company if it shall be finally determined by such a court in a judgment not
subject to appeal or final review that such indemnified party was not entitled
to indemnification by the Company.
(b) Each Holder shall agree, severally and not jointly, to indemnify and
hold harmless the Company, each underwriter who participates in an offering of
Registrable Securities and the other Holders and each of their respective
directors, officers (including each officer of the Company who signed the Shelf
Registration Statement), employees, trustees and agents and each Person, if any,
who controls the Company, any underwriter or any other Holder within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and
against any and all loss, liability, claim, damage and expense whatsoever
described in the indemnity contained in Section 5(a)(i) and (ii) hereof, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Shelf Registration Statement or any
Prospectus in reliance upon and in
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conformity with written information furnished to the Company by such Holder
expressly for use in the Shelf Registraton Statement or any Prospectus;
provided, however, that, no such Holder shall be liable for any claims hereunder
in excess of the amount of net proceeds received by such Holder from the sale of
Registrable Securities pursuant to the Shelf Registration Statement.
(c) Each indemnified party shall give prompt notice to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder, enclosing a copy of all papers served on such indemnified
party, but failure to so notify an indemnifying party shall not relieve it of
any liability which it may have to the indemnified party otherwise than on
account of this indemnity agreement. An indemnifying party may participate at
its own expense in the defense of any such action. If an indemnifying party so
elects within a reasonable time after receipt of such notice, such indemnifying
party, jointly with any other indemnifying party, may assume the defense of such
action with counsel chosen by it and approved by the indemnified party or
parties defendant in such action, provided that if any such indemnified party
reasonably determines that there may be legal defenses available to such
indemnified party which are different from or in addition to those available to
such indemnifying party or that representation of such indemnifying party and
any indemnified party by the same counsel would present a conflict of interest,
then such indemnifying party or parties shall not be entitled to assume such
defense. If an indemnifying party is not entitled to assume the defense of such
action as a result of the proviso to the preceding sentence, counsel for such
indemnifying party shall be entitled to conduct the defense of such indemnifying
party and counsel for each indemnified party or parties shall be entitled to
conduct the defense of such indemnified party or parties. If an indemnifying
party assumes the defense of an action in accordance with and as permitted by
the provisions of this paragraph, such indemnifying party shall not be liable
for any fees and expenses of counsel for the indemnified parties incurred
thereafter in connection with such action. In no event shall the indemnifying
party or parties be liable for the fees and expenses of more than one counsel
(in addition to any local counsel) separate from its own counsel for all
indemnified parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnity provision agreement provided for in this
Section 5 is for any reason held to be unavailable to the indemnified parties
although applicable in accordance with its terms, the Company, and the Holders
shall contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by said indemnity agreement incurred by the
Company and Holders, as incurred; provided that 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 that was not guilty of such
fraudulent misrepresentation. As between the Company, on the one hand, and the
Holders, on the other hand, such parties shall contribute to such aggregate
losses, liabilities, claims, damages and expenses of the nature contemplated by
such indemnity agreement in such proportion as shall be appropriate
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to reflect the relative fault of the Company, on the one hand, and the Holders,
on the other hand, with respect to the statements or omissions which resulted in
such loss, liability, claim, damage or expense, or action in respect thereof, as
well as any other relevant equitable considerations. The relative fault of the
Company, on the one hand, and of the Holders, on the other hand, 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 by or on behalf of the Holders, on the other hand, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company and the Initial Purchasers agree, and
the Holders shall agree, that it would not be just and equitable if contribution
pursuant to this Section 5 were to be determined by pro rata allocation or by
any other method of allocation that does not take into account the relevant
equitable considerations. For purposes of this Section 5(d), each director,
officer, employee, trustee, agent and Person, if any, who controls a Holder
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act shall have the same rights to contribution as such Holder, and each
director, officer, employee, trustee and agent of the Company, and each Person,
if any, who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act shall have the same rights to
contribution as the Company. No party shall be liable for contribution with
respect to any action, suit, proceeding or claim settled without its written
consent.
6. Miscellaneous.
(a) No Conflicting Agreements. The Company is not, as of the date
hereof, a party to, nor shall it, on or after the date of this Agreement, enter
into, any agreement with respect to its securities that conflicts with the
rights granted to the Holders of Registrable Securities in this Agreement,
except such registration rights agreements as have been disclosed to the Initial
Purchasers and as to which the Company has agreed, pursuant to the Purchase
Agreement, to use all reasonable efforts to obtain waivers of such rights
thereunder. The Company represents and warrants that the rights granted to the
Holders of Registrable Securities hereunder do not in any way conflict with the
rights granted to the Holders of the Company's securities under any other
agreements, except such registration rights agreements as to which the Company
has, pursuant to the Purchase Agreement, obtained waivers of rights thereunder.
The Company may not grant registration rights that would permit any Person that
is a third party the right to piggy-back on any Shelf Registration Statement.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, qualified,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Company has obtained the written
consent of Deutsche Xxxxxx Xxxxxxxx Inc.
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(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telex, telecopier, or air courier guaranteeing overnight delivery:
(1) if to a Holder, at the most current address given by such
Holder to the Company in accordance with the provisions of this
Section 6(c);
(2) if to the Initial Purchasers, initially at the address set
forth in the Purchase Agreement;
(3) if to the Company, initially at its address set forth in the
Purchase Agreement; and
All such notices and communications shall be deemed to have been duly given when
received.
The Initial Purchasers and the Company by notice to the others may
designate additional or different addresses for subsequent notices or
communications.
(d) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties and the
Holders, including, without the need for an express assignment or any consent by
the Company thereto, subsequent Holders of Registrable Securities. The Company
hereby agrees to extend the benefits of this Agreement to any Holder of
Registrable Securities and any such Holder may enforce the provisions of this
Agreement as if an original party hereto.
(e) Counterparts. This agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(f) Headings. The headings in this agreement are for convenience of
reference only and shall not limit or otherwise effect the meaning hereof.
(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES THEREOF.
(h) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired or affected
thereby, it being intended that all of the rights and privileges of the parties
shall be enforceable to the fullest extent permitted by law.
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Please confirm that the foregoing correctly sets forth the agreement
between the Company and you.
Very truly yours,
PLATINUM technology, inc.
By:
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Name:
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Title:
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The foregoing Registration Rights Agreement is hereby confirmed and
accepted as of the date first above written.
DEUTSCHE XXXXXX XXXXXXXX INC.
By:
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Name:
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Title:
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