EXHIBIT 4.3
REGISTRATION RIGHTS AGREEMENT
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This Registration Rights Agreement is made and entered into as of May
7, 2003, by and between Comverse Technology, Inc., a New York corporation (the
"Company"), and Xxxxxx Brothers Inc. (the "Initial Purchaser") who has purchased
or has the right to purchase up to $350,000,000 (up to $420,000,000 if the
over-allotment option is exercised) in aggregate principal amount of Zero Yield
Puttable Securities (ZYPSsm) due May 15, 2023 (the "Securities") of the Company
pursuant to the Purchase Agreement (as such term is defined below).
This Agreement is made pursuant to the Purchase Agreement, dated May 2,
2003, between the Company and the Initial Purchaser (the "Purchase Agreement").
In order to induce the Initial Purchaser to enter into the Purchase Agreement,
the Company has agreed to provide the registration rights provided for in this
Agreement to the Initial Purchaser and its direct and indirect transferees (i)
for the benefit of the Initial Purchaser, (ii) for the benefit of the holders
from time to time of the Securities (including the Initial Purchaser) and the
holders from time to time of the Common Stock issuable or issued upon conversion
of the Securities and (iii) for the benefit of the securities constituting
Transfer Restricted Securities (as defined below). The execution of this
Agreement is a condition to the closing of the transactions contemplated by the
Purchase Agreement.
The parties hereby agree as follows:
1. Definitions. As used in this Agreement, the following terms shall
have the following meanings:
Advice: As defined in Section 2(d) hereof.
Affiliate: An affiliate of any specified person shall mean any other
person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified person. For the purposes of this
definition, "control," when used with respect to any person, means the power to
direct the management and policies of such person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise and
the terms "affiliated," "controlling" and "controlled" have meanings correlative
to the foregoing.
Agreement: This Registration Rights Agreement, as the same may be
amended, supplemented or modified from time to time in accordance with the terms
hereof.
Business Day: Each Monday, Tuesday, Wednesday, Thursday and Friday that
is not a day on which banking institutions in New York, New York are authorized
or obligated by law or executive order to close.
Closing Date: May 7, 2003.
Common Stock: common stock, $0.10 par value per share, of the Company
and any other shares of common stock as may constitute "Common Stock" for
purposes of the Indenture, in each case, as issuable or issued upon conversion
of the Securities.
Company: Comverse Technology, Inc., a New York corporation, and any
successor corporation thereto.
controlling person: As defined in Section 6(a) hereof.
Effectiveness Period: As defined in Section 2(a) hereof.
Effectiveness Target Date: The 180th day following the Closing Date.
Exchange Act: The Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated by the SEC pursuant thereto.
Filing Date: The 90th day after the Closing Date.
Holder: Each owner of any Transfer Restricted Securities.
Indemnified Person: As defined in Section 6(a) hereof.
Indenture: The Indenture, dated as of the date hereof, 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.
Initial Purchaser: As defined in the first paragraph hereof.
Liquidated Damages: As defined in Section 3 hereof.
Proceeding: An action, claim, suit or proceeding (including, without
limitation, an investigation or partial proceeding, such as disposition),
whether commenced or threatened.
Prospectus: The prospectus included in any 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 promulgated pursuant to the Securities
Act), as amended or supplemented by any prospectus supplement, with respect to
the resale of any Transfer Restricted Securities covered by such Registration
Statement, and all other amendments and supplements to any such prospectus,
including post-effective amendments, and all materials incorporated by reference
or deemed to be incorporated by reference, if any, in such prospectus.
Purchase Agreement: As defined in the second paragraph hereof.
Registration Statement: Any registration statement of the Company filed
with the SEC pursuant to the Securities Act that covers the resale of any
Transfer Restricted Securities pursuant to the provisions of this Agreement,
including the Prospectus, amendments and supplements to such registration
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statement or Prospectus, including pre- and post-effective amendments, all
exhibits thereto, and all material incorporated by reference or deemed to be
incorporated by reference, if any, in such registration statement.
Rule 144: Rule 144 promulgated by the SEC pursuant to the Securities
Act, as such Rule may be amended from time to time, or any successor rule or
regulation.
Rule 144A: Rule 144A promulgated by the SEC pursuant to the Securities
Act, as such Rule may be amended from time to time, or any successor rule or
regulation.
Rule 158: Rule 158 promulgated by the SEC pursuant to the Securities
Act, as such Rule may be amended from time to time, or any successor rule or
regulation.
Rule 174: Rule 174 promulgated by the SEC pursuant to the Securities
Act, as such Rule may be amended from time to time, or any successor rule or
regulation.
Rule 415: Rule 415 promulgated by the SEC pursuant to the Securities
Act, as such Rule may be amended from time to time, or any successor rule or
regulation.
Rule 424: Rule 424 promulgated by the SEC pursuant to the Securities
Act, as such Rule may be amended from time to time, or any successor rule or
regulation.
Sale Notice: As defined in Section 2(d) hereof.
SEC: The Securities and Exchange Commission.
Securities: As defined in the first paragraph hereof.
Securities Act: The Securities Act of 1933, as amended, and the rules
and regulations promulgated by the SEC thereunder.
Shelf Registration Statement: As defined in Section 2(a) hereof.
Special Counsel: Any special counsel to the holders of Transfer
Restricted Securities.
TIA: The Trust Indenture Act of 1939, as amended.
Transfer Restricted Securities: The Securities and the shares of Common
Stock into which the Securities are converted or convertible (including any
shares of Common Stock issued or issuable thereon upon any stock split, stock
combination, stock dividend or the like), upon original issuance thereof, and at
all times subsequent thereto, and associated related rights, if any, until, in
the case of any such Security or share (and associated rights) (i) the date on
which the resale thereof has been registered effectively pursuant to the
Securities Act and have been disposed of in accordance with the Registration
Statement relating thereto, (ii) the date on which either such Security or the
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shares of Common Stock issued upon conversion of such Security are distributed
to the public pursuant to Rule 144 (or any similar provisions then in effect) or
are saleable pursuant to Rule 144(k) promulgated by the SEC pursuant to the
Securities Act or (iii) the date on which it ceases to be outstanding, whichever
date is earliest.
Trustee: The Trustee under the Indenture.
Underwritten registration or underwritten offering: A registration in
connection with which securities of the Company are sold to an underwriter for
reoffering to the public pursuant to an effective Registration Statement.
References herein to the term "Holders of a majority in aggregate
principal amount of Transfer Restricted Securities" or words to a similar effect
shall mean, with respect to any request, notice, demand, objection or other
action by the holders of Transfer Restricted Securities hereunder or pursuant
hereto (each, an "Act"), registered holders of a number of shares of the then
outstanding Common Stock constituting Transfer Restricted Securities and an
aggregate principal amount of then outstanding Securities constituting Transfer
Restricted Securities, such that the sum of such shares of Common Stock and the
shares of Common Stock issuable upon conversion of such Securities constitute in
excess of 50% of the sum of all of the then outstanding shares of Common Stock
constituting Transfer Restricted Securities and the number of shares of Common
Stock issuable upon conversion of then outstanding Securities constituting
Transfer Restricted Securities. For purposes of the immediately preceding
sentence, (i) any Holder may elect to take any Act with respect to all or any
portion of Transfer Restricted Securities held by it and only the portion as to
which such Act is taken shall be included in the numerator of the fraction
described in the preceding sentence and (ii) Transfer Restricted Securities
owned, directly or indirectly, by the Company or its Affiliates shall be deemed
not to be outstanding.
2. Shelf Registration Statement.
(a) The Company agrees to file with the SEC as soon as
practicable after the Closing Date, but in no event later than the
Filing Date, a Registration Statement for an offering to be made on a
continuous basis pursuant to Rule 415 covering all Transfer
Restricted Securities (the "Shelf Registration Statement"). The Shelf
Registration Statement shall be on Form S-3 under the Securities Act
or another appropriate form selected by the Company permitting
registration of such Transfer Restricted Securities for resale by the
Holders in the manner or manners reasonably designated by them
(including, without limitation, one or more underwritten offerings).
The Company shall not permit any securities other than Transfer
Restricted Securities to be included in the Shelf Registration
Statement. The Company shall use all reasonable efforts to cause the
Shelf Registration Statement to be declared effective pursuant to the
Securities Act as promptly as practicable following the filing
thereof, but in no event later than the Effectiveness Target Date,
and to keep the Shelf Registration Statement continuously effective
under the Securities Act until the date that is 24 months after the
date on which all of the Securities are sold (including those sold
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pursuant to the over-allotment option granted to the Initial
Purchaser in the Purchase Agreement) to the Initial Purchaser (the
"Effectiveness Period"), or such shorter period ending when there
cease to be outstanding any Transfer Restricted Securities.
(b) Supplements and Amendments. Subject to Section 2(d)
hereof, the Company shall use its reasonable efforts to keep the
Shelf Registration Statement continuously effective by supplementing
and amending the Shelf Registration Statement if required by the
rules, regulations or instructions applicable to the registration
form used for such Shelf Registration Statement, if required by the
Securities Act, or if reasonably requested by the Holders of a
majority in aggregate principal amount of Transfer Restricted
Securities or by any underwriter of such Transfer Restricted
Securities.
(c) Selling Securityholder Information. The Company may
require each Holder of Transfer Restricted Securities to be sold
pursuant to the Shelf Registration Statement to furnish to the
Company such information regarding the Holder and the distribution of
Transfer Restricted Securities as the Company may from time to time
reasonably require for inclusion in the Shelf Registration Statement,
and the Company may exclude from such registration Transfer
Restricted Securities of any Holder that fails to furnish such
information within a reasonable time after receiving such request.
Each Holder of Transfer Restricted Securities to be sold pursuant to
a Shelf Registration Statement agrees to furnish to the Company all
information required to be disclosed in order to make the information
previously furnished to the Company by such Holder not misleading.
(d) Certain Notices; Suspension of Sales. Each Holder of
Transfer Restricted Securities agrees by its acquisition of such
Transfer Restricted Securities to notify the Company (a "Sale
Notice") not later than three (3) Business Days prior to any proposed
sale by such Holder of Transfer Restricted Securities pursuant to the
Shelf Registration Statement, which notice shall be effective for
five (5) Business Days. The Company may, upon written notice to such
Holder, suspend such Holder's use of the Prospectus (which is a part
of the Shelf Registration Statement) for a reasonable period not to
exceed sixty (60) days if the Company in its reasonable judgment
believes it may possess material non-public information the
disclosure of which in its reasonable judgment would have a material
adverse effect on the Company and its subsidiaries taken as a whole.
Each Holder of Transfer Restricted Securities agrees by its
acquisition of such Transfer Restricted Securities to hold any
communication by the Company in response to a Sale Notice in
confidence. Each Holder of Transfer Restricted Securities further
agrees by its acquisition of such Transfer Restricted Securities
that, upon receipt of any notice from the Company of the happening of
any event of the kind described in Section 4(c)(ii), 4(c)(iii),
4(c)(v) or 4(c)(vi) hereof, such Holder will forthwith discontinue
disposition of such Transfer Restricted Securities covered by such
Registration Statement or Prospectus (other than in lawful
transactions exempt from the registration requirements under the
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Securities Act) until such Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 4(j)
hereof, or until it is advised in writing (the "Advice") by the
Company that the use of the applicable Prospectus may be resumed,
and, in either case, has received copies of any additional or
supplemental filings that are incorporated or deemed to be
incorporated by reference in such Prospectus.
(e) Compliance. The Company shall cause the Shelf
Registration Statement and the Prospectus and any amendment or
supplement thereto, as of the effective date of the Shelf
Registration Statement, amendment or supplement, (i) to comply as to
form in all material respects with the applicable requirements of the
Securities Act and the rules and regulations of the SEC and (ii) not
to contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading.
3. Liquidated Damages. If (a) the Shelf Registration Statement is not
filed with the SEC on or prior to the Filing Date or (b) the Shelf Registration
Statement has not been declared effective by the SEC on or prior to the
Effectiveness Target Date (each such event referred to in clauses (a) and (b), a
"Registration Default"), then the Company will pay to each Holder, for the first
90-day period immediately following the occurrence of such Registration Default,
liquidated damages ("Liquidated Damages") in an amount equal to one-quarter of
one percent (0.25%) per annum times the principal amount of Transfer Restricted
Securities held by such Holder for so long as the Registration Default
continues. The amount of Liquidated Damages payable to each Holder shall
increase by an additional one-quarter of one percent (0.25%) per annum times the
principal amount of Transfer Restricted Securities held by such Holder from and
after the 91st day following such Registration Default; provided, however, that
(1) upon filing of the Shelf Registration Statement, in the case of (i) above,
or (2) upon the effectiveness of the Shelf Registration Statement, in the case
of (ii) above, the Liquidated Damages payable with respect to such Transfer
Restricted Securities as a result of such clause (i) or (ii), as applicable,
shall cease; and, provided, further, that the amount of Liquidated Damages shall
never exceed one-half of one percent (0.5%) per annum.
Liquidated Damages shall be paid semi-annually in arrears, with the
first semi-annual payment due on May 15 or November 15, as applicable, following
the date on which such Liquidated Damages begin to accrue, and shall be paid to
holders of record of such Transfer Restricted Securities on such dates by U.S.
Dollar check drawn on a bank in the City of New York mailed to such holders of
record as of such payment date at such addresses as shall appear in the register
of the holders of record of such Transfer Restricted Securities, or, in the case
of those holders of record holding Transfer Restricted Securities in aggregate
principal amounts in excess of $3,500,000, upon application by any such Holders
to the registrar of such Transfer Restricted Securities not later than 14 days
prior to such payment date, by wire transfer to a U.S. Dollar account. The
payment of any such Liquidated Damages shall in all respects be subject to the
terms and conditions set forth in the Indenture. All obligations of the Company
set forth in the preceding paragraph that are outstanding with respect to any
Transfer Restricted Security at the time such security ceases to be a Transfer
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Restricted Security shall survive until such time as all such obligations with
respect to such Security shall have been satisfied in full.
4. Registration Procedures. In connection with the Company's
registration obligations hereunder, the Company shall effect such registrations
on the appropriate form selected by the Company available for the sale of
Transfer Restricted Securities to permit the sale of Transfer Restricted
Securities in accordance with the intended method or methods of disposition
thereof, and pursuant thereto the Company shall as expeditiously as possible:
(a) No fewer than five Business Days prior to the initial
filing of a Registration Statement or Prospectus and no fewer than
two Business Days prior to the filing of any amendment or supplement
thereto (including any document that would be incorporated or deemed
to be incorporated therein by reference), furnish to the registered
(as of the most recent reasonably practicable date which shall not be
more than two Business Days prior to the date such notice is
personally delivered, delivered to a next-day courier, deposited in
the mail or telecopied, as the case may be) Holders of Transfer
Restricted Securities, Special Counsel and the managing underwriters,
if any, copies of all such documents proposed to be filed, which
documents (including those incorporated or deemed to be incorporated
by reference) will be subject to the review of such Holders, Special
Counsel and such underwriters, if any, and cause the officers and
directors of the Company, counsel to the Company and independent
certified public accountants to the Company to respond to such
inquiries as shall be necessary in connection with such Registration
Statement, in the opinion of respective counsel to such Holders and
such underwriters, to conduct a reasonable investigation within the
meaning of the Securities Act. The Company shall not file any such
Registration Statement or related Prospectus or any amendments or
supplements thereto to which the Holders of a majority in aggregate
principal amount of Transfer Restricted Securities, Special Counsel,
or the managing underwriters, if any, shall reasonably object on a
timely basis;
(b) Subject to Section 2(d) hereof, prepare and file with
the SEC such amendments, including post-effective amendments, to each
Registration Statement as may be necessary to keep such Registration
Statement continuously effective for the applicable time period set
forth in Section 2(a) hereof; and cause the related Prospectus to be
supplemented by any required Prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 (or any similar
provisions then in force) under the Securities Act and the Exchange
Act with respect to the disposition of all securities covered by such
Registration Statement during such period in accordance with the
intended methods of disposition by the sellers thereof set forth in
such Registration Statement as so amended or in such Prospectus as so
supplemented;
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(c) Notify the registered (as of the most recent reasonably
practicable date which shall not be more than two Business Days prior
to the date such notice is personally delivered, delivered to a
next-day courier, deposited in the mail or telecopied, as the case
may be) Holders of Transfer Restricted Securities to be sold or
Special Counsel and the managing underwriters, if any, promptly (and
in the case of an event specified by clause (i)(A) of this paragraph
in no event fewer than two Business Days prior to such filing), and
(if requested by any such person), confirm such notice in writing,
(i)(A) when a Prospectus or any Prospectus supplement or
post-effective amendment is proposed to be filed, and, (B) with
respect to a Registration Statement or any post-effective amendment,
when the same has become effective, (ii) of any request of the SEC or
any other Federal or state governmental authority for amendments or
supplements to a Registration Statement or related Prospectus or for
additional information related thereto, (iii) of the issuance by the
SEC, any state securities commission, any other governmental agency
or any court of any stop order, order or injunction suspending or
enjoining the use or the effectiveness of a Registration Statement or
the initiation of any proceedings for that purpose, (iv) if at any
time any of the representations and warranties of the Company
contained in any agreement (including any underwriting agreement)
contemplated by Section 4(l) hereof are not true and correct in all
material respects, (v) of the receipt by the Company of any
notification with respect to the suspension of the qualification or
exemption from qualification of any Transfer Restricted Securities
for sale in any jurisdiction, or the initiation or threatening of any
proceeding for such purpose, and (vi) of the existence of any fact
and the happening of any event that makes any statement made in such
Registration Statement or related Prospectus untrue in any material
respect, or that requires the making of any changes in such
Registration Statement or Prospectus so that in the case of the
Registration Statement, it will not contain any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading and that, in the case of the Prospectus, such Prospectus
will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading, except if the existence of such
fact or the happening of any such event results from a corporate
development that is being pursued by the Company (A) the disclosure
of which in the Company's reasonable judgment would have a material
adverse effect on the Company and its subsidiaries taken as a whole
and (B) which, in the Company's reasonable judgment after
consultation with counsel would not, in the absence of an effective
Registration Statement, be required to be disclosed by the Company;
(d) Use all reasonable efforts to avoid the issuance of, or,
if issued, obtain the withdrawal of any order enjoining or suspending
the use or effectiveness of a Registration Statement or the lifting
of any suspension of the qualification (or exemption from
qualification) of any Transfer Restricted Securities for sale in any
jurisdiction, at the earliest practicable moment;
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(e) Subject to Section 2(c) hereof, if reasonably requested
by the managing underwriters, if any, or the Holders of a majority in
aggregate principal amount of Transfer Restricted Securities being
sold in connection with such offering, (i) promptly incorporate in a
Prospectus supplement or post-effective amendment such information as
the managing underwriters, if any, and such Holders agree should be
included therein, and (ii) make all required filings of such
Prospectus supplement or such post-effective amendment as soon as
practicable after the Company has received notification of the
matters to be incorporated in such Prospectus supplement or
post-effective amendment; provided, however, that the Company shall
not be required to take any action pursuant to this Section 4(e) that
would, in the opinion of counsel for the Company, violate applicable
law;
(f) Furnish to each Holder who so requests, Special Counsel
and each managing underwriter, if any, without charge, at least one
conformed copy of each Registration Statement and each amendment
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 by such
Holder, counsel or managing underwriter);
(g) Deliver to each Holder, Special Counsel and the
underwriters, if any, without charge, as many copies of the
Prospectus or Prospectuses (including each form of prospectus) and
each amendment or supplement thereto to such persons who reasonably
request; and, unless the Company shall have given notice to such
Holder pursuant to Section 4(c)(vi), the Company hereby consents to
the use of such Prospectus and each amendment or supplement thereto
by each of the selling Holders of Transfer Restricted Securities and
the underwriters, if any, in connection with the offering and sale of
Transfer Restricted Securities covered by such Prospectus and any
amendment or supplement thereto;
(h) Prior to any public offering of Transfer Restricted
Securities, use all reasonable efforts to register or qualify, or
cooperate with the Holders of Transfer Restricted Securities to be
sold, the underwriters, if any, and their respective counsel in
connection with the registration or qualification (or exemption from
such registration or qualification) of, such Transfer Restricted
Securities for offer and sale under the securities or Blue Sky laws
of such jurisdictions within the United States as any Holder or
underwriter reasonably requests in writing, keep each such
registration or qualification (or exemption therefrom) effective
during the period such Registration Statement is required to be kept
effective and do any and all other acts or things necessary legally
to enable the disposition in such jurisdictions of Transfer
Restricted Securities covered by the applicable Registration
Statement; provided, however, that the Company shall not be required
to qualify generally to do business in any jurisdiction where it is
not then so qualified or take any action that would subject it to
general service of process in any such jurisdiction where it is not
then so subject;
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(i) In connection with any sale or transfer of Transfer
Restricted Securities that will result in such securities no longer
being Transfer Restricted Securities, and unless any Transfer
Restricted Securities shall be in only book-entry form, cooperate
with the Holders and the managing underwriters, if any, to (A)
facilitate the timely preparation and delivery of certificates
representing Transfer Restricted Securities to be sold, which
certificates shall not bear any restrictive legends, shall bear a
CUSIP number different from the CUSIP number for Transfer Restricted
Securities and shall be in a form eligible for deposit with The
Depository Trust Company and (B) enable such Transfer Restricted
Securities to be in such denominations and registered in such names
as the managing underwriters, if any, or Holders may request at least
two Business Days prior to any sale of Transfer Restricted
Securities;
(j) Upon the occurrence of any event contemplated by Section
4(c)(vi) hereof, as promptly as practicable, prepare a supplement or
amendment, including, if appropriate, a post-effective amendment, to
each Registration Statement or a supplement to the related Prospectus
or any document incorporated or deemed to be incorporated therein by
reference, and file any other required document so that, as
thereafter delivered, such Prospectus will not contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading;
(k) Prior to the effective date of the first Registration
Statement relating to Transfer Restricted Securities, to provide a
CUSIP number for Transfer Restricted Securities to be sold pursuant
to the Registration Statement;
(l) Enter into such agreements (including an underwriting
agreement in form, scope and substance as is customary in
underwritten offerings) reasonably satisfactory to the Company and
take all such other reasonable actions in connection therewith
(including those reasonably requested by the managing underwriters,
if any, or the Holders of a majority in aggregate principal amount of
Transfer Restricted Securities being sold) in order to expedite or
facilitate the disposition of such Transfer Restricted Securities,
and in such connection, whether or not an underwriting agreement is
entered into and whether or not the registration is an underwritten
registration, (i) make such representations and warranties to the
Holders of such Transfer Restricted Securities and the underwriters,
if any, with respect to the business of the Company and its
subsidiaries (including with respect to businesses or assets acquired
or to be acquired by any of them), and the Registration Statement,
Prospectus and documents, if any, incorporated or deemed to be
incorporated by reference therein, in each case, in form, substance
and scope as are customarily made by issuers to underwriters in
underwritten offerings and reasonably acceptable to the Company, and
confirm the same if and when requested; (ii) seek to obtain opinions
of counsel to the Company and updates thereof, which counsel and
opinions (in form, scope and substance) shall be reasonably
satisfactory to the managing underwriters, if any, and Special
Counsel to the Holders of Transfer Restricted Securities being sold,
addressed to each of the underwriters, if any, covering the matters
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customarily covered in opinions requested in underwritten offerings
(including any such matters as may be reasonably requested by such
Special Counsel and underwriters); (iii) use all reasonable efforts
to obtain customary "cold comfort" letters and updates thereof from
the independent certified public accountants of the Company (and, if
necessary, any other independent certified public accountants of any
subsidiary of the Company or of any business acquired or to be
acquired by the Company for which financial statements and financial
data is, or is required to be, included in the Registration
Statement), addressed (where reasonably possible) to each selling
Holder of Transfer Restricted Securities and each of the
underwriters, if any, such letters to be in customary form and
covering matters of the type customarily covered in "cold comfort"
letters in connection with underwritten offerings; (iv) if an
underwriting agreement is entered into, the same shall contain
indemnification provisions and procedures no less favorable to the
selling Holders of Transfer Restricted Securities and the
underwriters, if any, than those set forth in Section 6 hereof (or
such other provisions and procedures acceptable to the Company and
Holders of a majority in aggregate principal amount of Transfer
Restricted Securities covered by such Registration Statement and the
managing underwriters); and (v) deliver such documents and
certificates as may be reasonably requested by the Holders of a
majority in aggregate principal amount of Transfer Restricted
Securities being sold, Special Counsel or the managing underwriters,
if any, to evidence the continued validity of the representations and
warranties made pursuant to clause (i) of this Section 4(l) and to
evidence compliance with any customary conditions contained in the
underwriting agreement or other agreement entered into by the
Company;
(m) Make available for inspection by a representative of the
Holders of Transfer Restricted Securities being sold, any underwriter
participating in any such disposition of Transfer Restricted
Securities, if any, and any attorney, consultant or accountant
retained by such selling Holders or underwriter, at the offices where
normally kept, during reasonable business hours, all financial and
other records, pertinent corporate documents and properties of the
Company and its subsidiaries as they may reasonably request
(including with respect to business and assets acquired or to be
acquired to the extent that such information is available to the
Company), and cause the officers, directors, agents and employees of
the Company and its subsidiaries (including with respect to business
assets acquired or to be acquired to the extent that such information
is available to the Company) to supply all information in each case
reasonably requested by any such representative, underwriter,
attorney, consultant or accountant in connection with such
Registration Statement; provided, however, that any information that
is reasonably and in good faith designated by the Company in writing
as confidential at the time of delivery of such information shall be
kept confidential by such persons (and such persons shall so agree in
writing), unless (i) disclosure of such information is required by
court or administrative order or is necessary to respond to inquiries
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of regulatory authorities, (ii) disclosure of such information is
required by law (including any disclosure requirements pursuant to
Federal securities laws in connection with the filing of any
Registration Statement or the use of any prospectus referred to in
this Agreement), (iii) such information becomes generally available
to the public other than as a result of a disclosure or failure to
safeguard by any such person or (iv) such information becomes
available to any such person from a source other than the Company and
such source is not bound by a confidentiality agreement;
(n) Cause the Indenture to be qualified under the TIA not
later than the effective date of the first Registration Statement
relating to Transfer Restricted Securities; and in connection
therewith, cooperate with the Trustee under the Indenture and the
Holders of Transfer Restricted Securities to effect such changes to
the Indenture, if any, as may be required for such Indenture to be so
qualified in accordance with the terms of the TIA; and execute, and
use all reasonable efforts to cause the Trustee to execute, all
customary documents as may be required to effect such changes, and
all other forms and documents (including the Form T-1) required to be
filed with the SEC to enable the Indenture to be so qualified under
the TIA in a timely manner;
(o) Comply with applicable rules and regulations of the SEC
and make generally available to its security holders earning
statements 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 45 days after
the end of any 12-month period (or 90 days after the end of any
12-month period if such period is a fiscal year), commencing on the
first day of the first fiscal quarter after the effective date of a
Registration Statement, which statement shall cover said period,
consistent with the requirements of Rule 158; and
(p) (i) list all Common Stock covered by such Registration
Statement on any securities exchange on which the Common Stock is
then listed or (ii) authorize for quotation on The Nasdaq Stock
Market all Common Stock covered by such Registration Statement if the
Common Stock is then so authorized for quotation.
5. Registration Expenses.
(a) All fees and expenses incident to the performance of or
compliance with this Agreement by the Company shall be borne by it
whether or not any Registration Statement is filed or becomes
effective and whether or not any securities are issued or sold
pursuant to any Registration Statement. The fees and expenses
referred to in the foregoing sentence shall include, without
limitation, (i) all registration and filings 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) in compliance with securities or Blue Sky laws (including,
without limitation and in addition to that provided for in (b) below,
reasonable fees and disbursements of counsel for the underwriters or
12
Special Counsel for the Holders in connection with Blue Sky
qualifications of Transfer Restricted Securities and determination of
the eligibility of Transfer Restricted Securities for investment
under the laws of such jurisdictions as the managing underwriters, if
any, or Holders of a majority in aggregate principal amount of
Transfer Restricted Securities, may reasonably designate)), (ii)
printing expenses (including, without limitation, expenses of
printing certificates for Transfer Restricted Securities in a form
eligible for deposit with The Depository Trust Company and of
printing Prospectuses if the printing of Prospectuses is required by
the managing underwriters, if any, or by the Holders of a majority in
aggregate principal amount of Transfer Restricted Securities included
in any Registration Statement, (iii) messenger, telephone and
delivery expenses, (iv) fees and disbursements of counsel for the
Company and Special Counsel for the Holders (plus any local counsel,
deemed appropriate by the Holders of a majority in aggregate
principal amount of Transfer Restricted Securities) in accordance
with the provisions of Section 5(b) hereof, (v) fees and
disbursements of all independent certified public accountants
referred to in Section 4(l)(iii) (including, without limitation, the
expenses of any special audit and "cold comfort" letters required by
or incident to such performance), (vi) Securities Act liability
insurance, if the Company so desires such insurance, and (vii) fees
and expenses of all other persons retained by the Company. In
addition, the Company shall pay its internal expenses (including,
without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the expense of an
annual audit, and the fees and expenses incurred in connection with
the listing of the securities to be registered on any securities
exchange. Notwithstanding the foregoing or anything in this Agreement
to the contrary, each Holder shall pay all underwriting discounts and
commissions of any underwriters with respect to any Transfer
Restricted Securities sold by it.
(b) In connection with any registration hereunder, the
Company shall reimburse the Holders of Transfer Restricted Securities
being registered or tendered for in such registration for the fees
and disbursements of not more than one firm of attorneys representing
the selling Holders (in addition to any local counsel), in an amount
not to exceed $25,000 in the aggregate for all such registrations,
which firm shall be chosen by the Holders of a majority in aggregate
principal amount of Transfer Restricted Securities. Xxxxxx, Xxxx &
Xxxxxxxx LLP shall be Special Counsel for all purposes hereof unless
and until another Special Counsel shall have been selected by Holders
of a majority in aggregate principal amount of Transfer Restricted
Securities and notice hereof shall have been given to the Company.
6. Indemnification.
(a) The Company agrees to indemnify and hold harmless (i)
the Initial Purchaser, (ii) each Holder of Transfer Restricted
Securities, (iii) each person, if any, who controls (within the
meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act) any of the foregoing (any of the persons referred to in
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this clause (iii) being hereinafter referred to as a "controlling
person"), and (iv) the respective officers, directors, partners,
employees, representatives and agents of the Initial Purchaser, each
Holder of Transfer Restricted Securities, or any controlling person
(any person referred to in clause (i), (ii), (iii) or (iv) may
hereinafter be referred to as an "Indemnified Person"), from and
against any and all losses, claims, damages, liabilities, expenses
and judgments caused by any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement,
Prospectus or form of Prospectus or in any amendment or supplement
thereto or in any preliminary Prospectus, or caused by any omission
or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein (in the
case of any Prospectus or form of Prospectus or supplement thereto,
in the light of the circumstances under which they were made) not
misleading, except insofar as such losses, claims, damages,
liabilities, expenses or judgments are caused by any such untrue
statement or omission or alleged untrue statement or omission based
upon information relating to any Indemnified Person furnished in
writing to the Company by or on behalf of such Indemnified Person
expressly for use therein; provided that the foregoing indemnity with
respect to any preliminary Prospectus shall not inure to the benefit
of any Indemnified Person from whom the person asserting such losses,
claims, damages, liabilities, expenses and judgments purchased
securities if such untrue statement or omission or alleged untrue
statement or omission made in such preliminary Prospectus is
eliminated or remedied in the Prospectus and a copy of the Prospectus
shall not have been furnished to such person in a timely manner,
unless such Prospectus was not furnished because the Company failed
to provide the Indemnified Person with sufficient copies of such
corrected Prospectus within the time period required.
(b) In case any action shall be brought against any
Indemnified Person, based upon any Registration Statement or any such
Prospectus or any amendment or supplement thereto and with respect to
which indemnity may be sought against the Company, such Indemnified
Person shall promptly notify the Company in writing and the Company
shall assume the defense thereof, including the employment of counsel
reasonably satisfactory to such Indemnified Person and payment of all
fees and expenses. Any Indemnified Person shall have the right to
employ separate counsel in any such action and participate in (but
not control) the defense thereof, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Person, unless
(i) the employment of such counsel shall have been specifically
authorized in writing by the Company, (ii) the Company shall have
failed to assume the defense and employ counsel or (iii) such
Indemnified Person or Persons shall have been advised by counsel that
there may be a conflict between the positions of the indemnifying
party or parties and of the indemnified party or parties in
conducting the defense of such action or that there may be legal
defenses available to such Indemnified Person or Persons different
from or in addition to those available to the indemnifying party or
parties (in which case the Company shall not have the right to assume
the defense of such action on behalf of such Indemnified Person, it
being understood, however, that the Company shall not, in connection
14
with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the fees and
expenses of more than one separate firm of attorneys, (in addition to
any local counsel) for all such Indemnified Persons, which firm shall
be designated in writing by such Indemnified Persons and shall be
reasonably satisfactory to the Company, and that all such fees and
expenses shall be reimbursed as they are incurred). The Company shall
not be liable for any settlement of any such action effected without
its written consent but if settled with the written consent of the
Company, the Company agrees to indemnify and hold harmless any
Indemnified Person from and against any loss or liability by reason
of such settlement. No indemnifying party shall, without the prior
written consent of the indemnified party (which consent shall not be
unreasonably withheld), effect any settlement of any pending or
threatened action in respect of which any indemnified party is or
could have been a party and indemnity could have been sought
hereunder by such indemnified party, unless such settlement includes
an unconditional release of such indemnified party from all liability
on claims that are the subject matter of such action.
(c) In connection with any Registration Statement in which
the Holder of Transfer Restricted Securities is participating, such
Holder of Transfer Restricted Securities agrees, severally and not
jointly, to indemnify and hold harmless the Company, its directors,
its officers and any person controlling the Company within the
meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, to the same extent as the foregoing indemnity from the
Company to each Indemnified Person but only with reference to
information relating to such Indemnified Person furnished in writing
by or on behalf of such Indemnified Person expressly for use in such
Registration Statement. In case any action shall be brought against
the Company, any of its directors, any such officer or any person
controlling the Company based on such Registration Statement and in
respect of which indemnity may be sought against any Indemnified
Person, the Indemnified Person shall have the rights and duties given
to the Company (except that if the Company shall have assumed the
defense thereof, such Indemnified Person shall not be required to do
so, but may employ separate counsel therein and participate in (but
not control) the defense thereof but the fees and expenses of such
counsel shall be at the expense of such Indemnified Person), and the
Company, its directors, any such officers and any person controlling
the Company shall have the rights and duties given to the Indemnified
Person, by Section 6(b) hereof.
(d) If the indemnification provided for in this Section 6 is
unavailable to an indemnified party in respect of any losses, claims,
damages, liabilities, expenses or judgments referred to therein, then
each indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages,
liabilities, expenses and judgments (i) in such proportion as is
15
appropriate to reflect the relative benefits received by the Company
on the one hand and each Indemnified Person on the other hand from
the offering of Transfer Restricted Securities or (ii) if the
allocation provided by clause (i) above 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 Company and each such Indemnified Person in
connection with the statements or omissions which resulted in such
losses, claims, damages, liabilities, expenses or judgments, as well
as any other relevant equitable considerations. The relative fault of
the Company and each such Indemnified Person shall be determined by
reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission to state a
material fact relates to information supplied by the Company or such
Indemnified Person and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Initial Purchaser agree that it would
not be just and equitable if contribution pursuant to this Section
6(d) were determined by pro rata allocation (even if the Indemnified
Persons were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable
considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an indemnified party as a result of the
losses, claims, damages, liabilities, expenses or judgments referred
to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 6, no Indemnified
Person shall be required to contribute any amount in excess of the
amount by which the total proceeds received by it in connection with
the sale of Transfer Restricted Securities pursuant to this Agreement
exceeds the amount of any damages which such Indemnified Person 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. The
Indemnified Persons' obligations to contribute pursuant to this
Section 6(d) are several in proportion to the respective amount of
Transfer Restricted Securities included in and sold pursuant to any
such Registration Statement by each Indemnified Person and not joint.
(e) The agreements contained in this Section 6 shall survive
the sale of Transfer Restated Securities pursuant to any Registration
Statement and shall remain in full force and effect, regardless of
any investigation made by or on behalf of any Indemnified Person.
7. Rules 144 and 144A. The Company shall use all 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 it is not required to file
such reports but in the past had been required to or did file such reports, it
16
will, upon the request of any Holder, make available other information as
required by, and so long as necessary to permit sales of, its Transfer
Restricted Securities pursuant to Rule 144 and Rule 144A. Notwithstanding the
foregoing, nothing in this Section 7 shall be deemed to require the Company to
register any of its securities pursuant to the Exchange Act.
8. Underwritten Registrations. If any Transfer Restricted Securities
covered by the Shelf Registration Statement are to be sold in an underwritten
offering, the investment banker or investment bankers and manager or managers
that will administer the offering will be investment bankers of recognized
national standing selected by the Holders of a majority in aggregate principal
amount of such Transfer Restricted Securities included in such offering, subject
to the consent of the Company (which will not be unreasonably withheld or
delayed).
No person may participate in any underwritten registration hereunder
unless such person (i) agrees to sell such person's Transfer Restricted
Securities on the basis reasonably provided in any underwriting arrangements
approved by the persons entitled hereunder to approve such arrangements and (ii)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the terms
of such underwriting arrangements.
9. Miscellaneous.
(a) Remedies. In the event of a breach by the Company, or by
a Holder of Transfer Restricted Securities, of any of their
obligations under this Agreement, each Holder of Transfer Restricted
Securities or the Company, respectively, in addition to being
entitled to exercise all rights granted by law, including recovery of
damages, will be entitled to specific performance of its rights under
this Agreement. The Company and each Holder of Transfer Restricted
Securities agree that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of any
of the provisions of this Agreement and hereby further agree that, in
the event of any action for specific performance in respect of such
breach, they shall waive the defense that a remedy at law would be
adequate.
(b) No Inconsistent Agreements. The Company shall not enter
into any agreement with respect to its securities that is
inconsistent with the rights granted to the holders of Transfer
Restricted Securities in this Agreement or otherwise conflicts with
the provisions hereof. Other than registration rights granted to
holders of the 1 1/2% Convertible Senior Debentures due 2005, the
Company is not currently a party to any agreement granting any
registration rights with respect to any of its securities to any
person which conflicts with the Company's obligations hereunder or
gives any other party the right to include any securities in any
Registration Statement filed pursuant hereto, except for such rights
and conflicts as have been irrevocably waived. Without limiting the
generality of the foregoing, without the written consent of the
17
Holders of a majority in aggregate principal amount in the case of
the Securities of Transfer Restricted Securities, the Company shall
not grant to any person the right to request it to register any of
its securities under the Securities Act unless the rights so granted
are subject in all respect to the prior rights of the holders of
Transfer Restricted Securities set forth herein, and are not
otherwise in conflict or inconsistent with the provisions of this
Agreement.
(c) No Adverse Action Affecting Transfer Restricted
Securities. Subject to the Company's right to suspend use of the
Prospectus pursuant to Section 2(d) hereof, or give a notice pursuant
to Section 4(c)(vi) hereof, the Company will not take any action with
respect to Transfer Restricted Securities which would adversely
affect the ability of any of the Holders of Transfer Restricted
Securities to include such Transfer Restricted Securities in a
registration undertaken pursuant to this Agreement.
(d) No Piggyback on Registrations. The Company shall not
grant to any of its security holders (other than the Holders of
Transfer Restricted Securities in such capacity) the right to include
any of its securities in any Shelf Registration Statement other than
Transfer Restricted Securities.
(e) Amendments and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be
amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given, without the
written consent of the Holders of a majority in aggregate principal
amount of Transfer Restricted Securities. Notwithstanding the
foregoing, a waiver or consent to depart from the provisions hereof
with respect to a matter that relates exclusively to the rights of
Holders of Transfer Restricted Securities whose securities are being
sold pursuant to a Registration Statement and that does not directly
or indirectly affect the rights of other Holders of Transfer
Restricted Securities may be given by Holders of a majority in
aggregate principal amount of Transfer Restricted Securities being
sold by such Holders pursuant to such Registration Statement;
provided, however, that the provisions of this sentence may not be
amended, modified, or supplemented except in accordance with the
provisions of the immediately preceding sentence.
(f) Notices. All notices and other communications provided
for herein shall be made in writing by hand-delivery, next-day air
courier, certified first-class mail, return receipt requested or
telecopy:
(i) if to a Holder of Transfer Restricted
Securities, to the address of such Holder as it appears in
the Security or Common Stock register of the Company, as
applicable; and
(ii) if to the Company, to:
18
Comverse Technology, Inc.
000 Xxxxxxxxx Xxxx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxx Xxxxxxxxx
with a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx Xxxxxx
(iii) if to Special Counsel, to:
Xxxxxx, Xxxx & Xxxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx
or such other Special Counsel at such other address and telecopy
number as a majority in aggregate principal amount of Transfer
Restricted Securities shall have given notice to the Company as
contemplated by Section 5(b) hereof.
Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given, when
delivered by hand, if personally delivered; one Business Day after
being timely delivered to a next-day air courier, five Business Days
after being deposited in the mail, postage prepaid, if mailed; and
when receipt is acknowledged by the recipient's telecopier machine,
if telecopied.
(g) Successors and Assigns. This Agreement shall inure to
the benefit of and be binding upon the successors and permitted
assigns of each of the parties and shall inure to the benefit of each
existing and future Holder of Transfer Restricted Securities. The
Company may not assign its rights or obligations hereunder without
the prior written consent of each Holder of Transfer Restricted
Securities, other than by operation of law pursuant to a merger or
consolidation to which the Company is a party. In the event the
Securities become convertible into common stock of another person
pursuant to Section 12.11 of the Indenture, the Company shall cause
such person to assume the Company's obligations hereunder.
(h) Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate
19
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.
(i) Governing Law; Submission to Jurisdiction.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS
APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF
NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
THE COMPANY HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION
OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF
MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL COURT
SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK
IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT, AND IRREVOCABLY ACCEPTS FOR
ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS. THE
COMPANY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY
EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION THAT
IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF
ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH
COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.
(j) Severability. The remedies provided herein are
cumulative and not exclusive of any remedies provided by law. If any
term, provision, covenant or restriction of this Agreement is held by
a court of competent jurisdiction to be invalid, illegal, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect
and shall in no way be affected, impaired or invalidated, and the
parties hereto shall use their best efforts to find and employ an
alternative means to achieve the same or substantially the same
result as that contemplated by such term, provision, covenant or
restriction. It is hereby stipulated and declared to be the intention
of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such
that may be hereafter declared invalid, illegal, void or
unenforceable.
(k) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect
the meaning hereof. All references made in this Agreement to
"Section" and "paragraph" refer to such Section or paragraph of this
Agreement, unless expressly stated otherwise.
20
(l) Attorneys' Fees. In any action or proceeding brought to
enforce any provision of this Agreement, or where any provision
hereof is validly asserted as a defense, the prevailing party, as
determined by the court, shall be entitled to recover its reasonable
attorneys' fees in addition to any other available remedy.
21
IN WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be duly executed as of the date first written above.
COMVERSE TECHNOLOGY, INC.
By: /s/ Xxxxx Xxxxxxxxx
-------------------------------------
Xxxxx Xxxxxxxxx
Executive Vice President and
Chief Financial Officer
XXXXXX BROTHERS INC.
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------
Xxxxxxx X. Xxxxx
Managing Director
22
