EXHIBIT 4.5
REGISTRATION RIGHTS AGREEMENT
AMONG
COMPUTER NETWORK TECHNOLOGY CORPORATION
AND
BEAR, XXXXXXX & CO. INC.
XX XXXXX SECURITIES CORPORATION
SOUNDVIEW TECHNOLOGY CORPORATION
DATED AS OF FEBRUARY 20, 2002
This REGISTRATION RIGHTS AGREEMENT, dated as of February 20, 2002, is among
COMPUTER NETWORK TECHNOLOGY CORPORATION, a Minnesota corporation (together with
any successor entity, herein referred to as the "Issuer"), and BEAR, XXXXXXX &
CO. INC., XX XXXXX SECURITIES CORPORATION and SOUNDVIEW TECHNOLOGY CORPORATION
(collectively, the "Initial Purchasers").
Pursuant to the Purchase Agreement, dated February 13, 2002, between the Issuer
and the Initial Purchasers (the "Purchase Agreement"), the Initial Purchasers
have agreed to purchase from the Issuer $125,000,000 aggregate principal amount
of 3% Convertible Subordinated Notes due 2007 (the "Convertible Notes"). The
Convertible Notes will be convertible into fully paid, nonassessable common
stock, $.01 par value per share, of the Issuer (the "Common Stock") on the
terms, and subject to the conditions, set forth in the Indenture (as defined
herein). To induce the Initial Purchasers to purchase the Convertible Notes, and
in satisfaction of a condition to the Initial Purchasers' obligations under the
Purchase Agreement, the Issuer has agreed to provide the registration rights set
forth in this Agreement.
The parties hereby agree as follows:
Definitions.
As used in this Agreement, the following capitalized terms shall have the
following meanings:
"Advice": As defined in Section 4(c)(ii) hereof.
"Affiliate": With respect to any specified Person, means an "Affiliate," as
defined in Rule 144 under the Securities Act, of such Person.
"Agreement": This Registration Rights Agreement.
"Blue Sky Application": As defined in Section 6(a)(i) hereof.
"Broker-Dealer": Any broker or dealer registered under the Exchange Act.
"Business Day": A day other than a Saturday or Sunday or any federal holiday in
the United States.
"Closing Date": The date of this Agreement.
"Commission": The United States Securities and Exchange Commission.
"Common Stock": As defined in the preamble hereto.
"Control": With respect to a Person, the possession, directly or indirectly, of
the power to direct or cause the direction of the management or policies of such
Person, whether through the ability to exercise voting power, by contract or
otherwise.
"Convertible Notes": As defined in the preamble hereto.
"Damages Payment Date": Each interest payment date with respect to the
Convertible Notes.
"Effectiveness Period": As defined in Section 2(a)(iii) hereof.
"Effectiveness Target Date": As defined in Section 2(a)(ii) hereof.
"Exchange Act": The Securities Exchange Act of 1934, as amended.
"Holder": A Person who owns, beneficially or otherwise, Registrable Securities.
"Indemnified Holder": As defined in Section 6(a) hereof.
"Indenture": The Indenture, dated as of February 20, 2002, between the Issuer
and U.S. Bank National Association, as trustee (the "Trustee"), pursuant to
which the Convertible Notes are to be issued, as such Indenture is amended,
modified or supplemented from time to time in accordance with the terms thereof.
"Initial Purchasers": As defined in the preamble hereto.
"Issuer": As defined in the preamble hereto.
"Liquidated Damages": As defined in Section 3(a) hereof.
"Majority of Holders": Holders holding over 50% of the aggregate principal
amount of Convertible Notes outstanding; provided that, for purpose of this
definition, a Holder of shares of Common Stock that constitute Registrable
Securities and issued upon conversion of the Convertible Notes shall be deemed
to hold an aggregate principal amount of Convertible Notes (in addition to the
principal amount of Convertible Notes held by such Holder) equal to the product
of (x) the number of such shares of Common Stock held by such Holder and (y) the
prevailing conversion price, such prevailing conversion price as determined in
accordance with Article 4 of the Indenture.
"NASD": National Association of Securities Dealers, Inc.
"Person": An individual, partnership, corporation, unincorporated organization,
trust, joint venture or a government or agency or political subdivision thereof.
"Prospectus": The prospectus included in a Shelf Registration Statement, as
amended or supplemented by any prospectus supplement and by all other amendments
thereto, including post-effective amendments, and all material incorporated by
reference into such Prospectus.
"Questionnaire Deadline": As defined in Section 2(b) hereof.
"Record Holder": With respect to any Damages Payment Date, each Person who is a
Holder on the record date with respect to the interest payment date on which
such Damages Payment Date shall occur. In the case of a Holder of shares of
Common Stock issued upon conversion of the Convertible Notes, "Record Holder"
shall mean each Person who is a Holder of shares of Common Stock that constitute
Registrable Securities on the June 1 or December 1 immediately preceding the
Damages Payment Date.
"Registrable Securities": Each Convertible Note and each share of Common Stock
issued upon conversion of Convertible Notes until, in the case of any such
security, (A) the earliest of (i) its effective registration under the
Securities Act and resale in accordance with the Registration Statement covering
it, (ii) expiration of the holding period that would be applicable thereto under
Rule 144(k) under the Securities Act were it not held by an Affiliate of the
Issuer or (iii) its sale to the public pursuant to Rule 144 under the Securities
Act, and (B) as a result of the event or circumstance described in any of the
foregoing clauses (i) through (iii), the legends with respect to transfer
restrictions required under the Indenture are removed or removable in accordance
with the terms of the Indenture or such legend, as the case may be.
"Registration Default": As defined in Section 3(a)(iv) hereof.
"Registration Statement": Means any registration statement of the Issuer that
covers any of the Registrable Securities pursuant to the provisions of this
Agreement including the Prospectus, amendments and supplements to such
registration statement, including post-effective amendments, all exhibits, and
all materials incorporated by reference or explicitly deemed to be incorporated
by reference in such registration statement.
"Sale Notice": As defined in Section 4(e) hereof.
"Securities Act": The Securities Act of 1933, as amended.
"Shelf Filing Deadline": As defined in Section 2(a)(i) hereof.
"Shelf Registration Statement": As defined in Section 2(a)(i) hereof.
"Suspension Period": As defined in Section 4(b)(i) hereof.
"TIA": The Trust Indenture Act of 1939, as in effect on the date the Indenture
is qualified under that act.
"Underwriting Majority": On any date, Holders holding at least 66 2/3% of the
aggregate principal amount of the Registrable Securities outstanding on such
date; provided, that for the purpose of this definition, a holder of shares of
Common Stock that constitute Registrable Securities and issued upon conversion
of Convertible Notes shall be deemed to hold an aggregate principal amount of
Registrable Securities (in addition to the principal amount of Convertible Notes
held by such holder) equal to (x) the number of such shares of Common Stock that
are Registrable Securities held by such holder multiplied by (y) the then
applicable Conversion Price (as defined in the Indenture).
"Underwritten Registration" or "Underwritten Offering": A registration in which
securities of the Issuer are sold to an underwriter for reoffering to the
public.
Shelf Registration.
The Issuer shall:
not later than 90 days after the date hereof (the "Shelf Filing Deadline"),
cause to be filed a registration statement pursuant to Rule 415 under the
Securities Act (the "Shelf Registration Statement"), which Shelf Registration
Statement shall provide for resales of all Registrable Securities held by
Holders that have provided the information required pursuant to the terms of
Section 2(b) hereof;
use its reasonable best efforts to cause the Shelf Registration Statement to be
declared effective by the Commission no later than 180 days after the date
hereof (the "Effectiveness Target Date"); and
subject to Section 4(b)(i) hereof, use its reasonable best efforts to keep the
Shelf Registration Statement continuously effective, supplemented and amended as
required by the provisions of Section 4(b) hereof to the extent necessary to
ensure that (A) it is available for resales by the Holders of Registrable
Securities entitled to the benefit of this Agreement and (B) conforms with the
requirements of this Agreement and the Securities Act and the rules and
regulations of the Commission promulgated thereunder as announced from time to
time for a period (the "Effectiveness Period") of:
two years after the date of filing of the Shelf Registration Statement; or
such shorter period, from the date of filing of the Shelf Registration Statement
until either of (i) the sale pursuant to a Shelf Registration Statement of all
the Registrable Securities or (ii) the expiration of the holding period
applicable to the Registrable Securities held by Holders that are not Affiliates
of the Issuer under Rule 144(k) under the Securities Act.
No Holder of Registrable Securities may include any of its Registrable
Securities in the Shelf Registration Statement pursuant to this Agreement unless
such Holder furnishes to the Issuer in writing, prior to or on the 20th Business
Day after receipt of a request therefor (the "Questionnaire Deadline"), such
information as the Issuer may reasonably request for use in connection with the
Shelf Registration Statement or Prospectus or preliminary
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Prospectus included therein and in any application to be filed with or under
state securities laws. In connection with all such requests for information from
Holders of Registrable Securities, the Issuer shall notify such Holders of the
requirements set forth in the preceding sentence. No Holder of Registrable
Securities shall be entitled to Liquidated Damages pursuant to Section 3 hereof
unless such Holder shall have provided all such reasonably requested information
prior to or on the Questionnaire Deadline. Each Holder as to which the Shelf
Registration Statement is being effected agrees to furnish promptly to the
Issuer all information required to be disclosed in order to make information
previously furnished to the Issuer by such Holder not materially misleading.
Liquidated Damages.
If:
the Shelf Registration Statement has not been filed with the Commission prior to
or on the Shelf Filing Deadline,
the Shelf Registration Statement has not been declared effective by the
Commission prior to or on the Effectiveness Target Date,
subject to the provisions of Section 4(b)(i) hereof, the Shelf Registration
Statement is filed and declared effective but, during the Effectiveness Period
and after the Effectiveness Target Date, shall thereafter cease to be effective
or fail to be usable for its intended purpose without being succeeded within
five Business Days by a post-effective amendment to the Shelf Registration
Statement or a report filed with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act that cures such failure and, in the case
of a post-effective amendment, is itself declared effective within such five
Business Day period, or
prior to or on the 45th or 60th day, as the case may be, of any Suspension
Period, such suspension has not been terminated, (each such event referred to in
foregoing clauses (i) through (iv), a "Registration Default"),
then the Issuer hereby agrees to pay liquidated damages ("Liquidated
Damages") to each Holder from and including the day following the
Registration Default to but excluding the day on which the Registration
Default has been cured in an amount equal to:
with respect to such Holder's Convertible Notes, for the first 90-day period
during which a Registration Default shall have occurred and be continuing but
excluding the day on which all Registration Defaults have been cured, an amount
equal to 0.25% per annum on the principal amount of such Holder's then
outstanding and not converted Convertible Notes, increasing to an amount per
annum on the principal amount of such Holder's then outstanding and not
converted Convertible Notes equal to 0.50% on the 91st day, provided that in no
event shall the aggregate Liquidated Damages pursuant to this clause accrue at a
rate per annum exceeding 0.50% of the sum of the principal amount of the then
outstanding Convertible Notes;
with respect to such Holder's Common Stock issued upon conversion of Convertible
Notes for the first 90-day period during which a Registration Default shall have
occurred and be continuing but excluding the day on which all Registration
Defaults have been cured, an amount equal to 0.25% per annum on the principal
amount of such Holder's converted Convertible Notes, increasing to an amount per
annum on the principal amount of such Holder's converted Convertible Notes equal
to 0.50% on the 91st day, provided that in no event shall the aggregate
Liquidated Damages pursuant to this clause accrue at a rate per annum exceeding
0.50% of the sum of the principal amount of the then converted Convertible
Notes;
All accrued Liquidated Damages shall be paid in arrears to Record Holders by the
Issuer on each Damages Payment Date by wire transfer of immediately available
funds or by federal funds check. Following the cure of all Registration Defaults
relating to any particular Convertible Note or share of Common Stock, the
accrual of Liquidated Damages with respect to such Convertible Note or share of
Common Stock will cease.
All obligations of the Issuer set forth in this Section 3 that are outstanding
with respect to any Registrable Security at the time such security ceases to be
a Registrable Security shall survive until such time as all such obligations
with respect to such Registrable Security shall have been satisfied in full.
The Liquidated Damages set forth above shall be the exclusive monetary remedy
available to the Holders of Registrable Securities for such Registration
Default.
Registration Procedures.
In connection with the Shelf Registration Statement, the Issuer shall comply
with all the provisions of Section 4(b) hereof and shall, in accordance with
Section 2 hereof, prepare and file with the Commission a Shelf Registration
Statement relating to the registration on any appropriate form under the
Securities Act.
In connection with the Shelf Registration Statement and any Prospectus required
by this Agreement to permit the sale or resale of Registrable Securities, the
Issuer shall:
Subject to any notice by the Issuer in accordance with this Section 4(b) of the
existence of any fact or event of the kind described in Section 4(b)(iii)(D),
use its reasonable best efforts to keep the Shelf Registration Statement
continuously effective during the Effectiveness Period; upon the occurrence of
any event that would cause the Shelf
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Registration Statement or the Prospectus contained therein (A) to contain a
material misstatement or omission or (B) not be effective and usable for resale
of Registrable Securities during the Effectiveness Period, the Issuer shall file
promptly an appropriate amendment to the Shelf Registration Statement or a
report filed with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act, in the case of clause (A), correcting any such misstatement
or omission, and, in the case of either clause (A) or (B), use its reasonable
best efforts to cause such amendment to be declared effective and the Shelf
Registration Statement and the related Prospectus to become usable for their
intended purposes as soon as practicable thereafter. Notwithstanding the
foregoing, the Issuer may suspend the effectiveness of the Shelf Registration
Statement by written notice to the Holders for a period not to exceed an
aggregate of 45 days in any 90-day period (each such period, a "Suspension
Period") if:
(x) an event occurs and is continuing as a result of which the Shelf
Registration Statement would, in the Issuer's reasonable judgment,
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and
(y) the Issuer reasonably determines that the disclosure of such
event at such time would have a material adverse effect on the
business of the Issuer (and its subsidiaries, if any, taken as a
whole);
provided, that (A) in the event the disclosure relates to a previously
undisclosed proposed or pending material business transaction, the
disclosure of which would impede the Issuer's ability to consummate such
transaction, the Issuer may extend a Suspension Period from 45 days to 60
days and (B) the Suspension Periods shall not exceed an aggregate of 90
days in any 360-day period. Each Holder, by its acceptance of a
Registrable Security, agrees to hold in confidence any communication by
the Issuer relating to an event described in Section 4(b)(i)(x) and (y) or
Section 4(b)(iii)(D).
Prepare and file with the Commission such amendments and post-effective
amendments to the Shelf Registration Statement as may be necessary to keep the
Shelf Registration Statement effective during the Effectiveness Period; cause
the Prospectus to be supplemented by any required Prospectus supplement, and as
so supplemented to be filed pursuant to Rule 424 under the Securities Act, and
to comply fully with the applicable provisions of Rules 424 and 430A under the
Securities Act in a timely manner; and comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by the
Shelf Registration Statement during the applicable period in accordance with the
intended method or methods of distribution by the sellers thereof set forth in
the Shelf Registration Statement or supplement to the Prospectus.
Advise the underwriter(s), if any, and, in the case of (A), (C) and (D) below,
the selling Holders promptly and, if requested by such Persons, to confirm such
advice in writing:
when the Prospectus or any Prospectus supplement or post-effective amendment has
been filed, and, with respect to the Shelf Registration Statement or any
post-effective amendment thereto, when the same has become effective,
of any request by the Commission for amendments to the Shelf Registration
Statement or amendments or supplements to the Prospectus or for additional
information relating thereto,
of the issuance by the Commission of any stop order suspending the effectiveness
of the Shelf Registration Statement under the Securities Act or of the
suspension by any state securities commission of the qualification of the
Registrable Securities for offering or sale in any jurisdiction, or the
initiation of any proceeding for any of the preceding purposes, or
of the existence of any fact or the happening of any event, during the
Effectiveness Period, that makes any statement of a material fact made in the
Shelf Registration Statement, the Prospectus, any amendment or supplement
thereto, or any document incorporated by reference therein untrue, or that
requires the making of any additions to or changes in the Shelf Registration
Statement or the Prospectus in order to make the statements therein not
misleading.
If at any time the Commission shall issue any stop order suspending the
effectiveness of the Shelf Registration Statement, or any state securities
commission or other regulatory authority shall issue an order suspending
the qualification or exemption from qualification of the Registrable
Securities under state securities or Blue Sky laws, the Issuer shall use
its reasonable best efforts to obtain the withdrawal or lifting of such
order at the earliest possible time.
Furnish to one counsel for the selling Holders and each of the underwriter(s),
if any, before filing with the Commission, a copy of the Shelf Registration
Statement and copies of any Prospectus included therein or any amendments or
supplements to either of the Shelf Registration Statement or Prospectus (other
than documents incorporated by reference after the initial filing of the Shelf
Registration Statement), which documents will be subject to the review of such
counsel and underwriter(s), if any, for a period of two Business Days, and the
Issuer will not file the Shelf Registration Statement or Prospectus or any
amendment or supplement to the Shelf
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Registration Statement or Prospectus (other than documents incorporated by
reference) to which such counsel or the underwriter(s), if any, shall reasonably
object within two Business Days after the receipt thereof. Such counsel or
underwriter, if any, shall be deemed to have reasonably objected to such filing
if the Shelf Registration Statement, amendment, Prospectus or supplement, as
applicable, as proposed to be filed, contains a material misstatement or
omission.
Subject to the execution of a confidentiality agreement reasonably acceptable to
the Issuer, make available at reasonable times for inspection by one or more
representatives of the selling Holders, designated in writing by a Majority of
Holders whose Registrable Securities are included in the Shelf Registration
Statement, any underwriter, if any, participating in any distribution pursuant
to the Shelf Registration Statement, and any attorney or accountant retained by
the Majority of Holders or any of the underwriter(s), all financial and other
records, pertinent corporate documents and properties of the Issuer as shall be
reasonably necessary to enable them to exercise any applicable due diligence
responsibilities, and cause the Issuer's officers, directors, managers and
employees to supply all information reasonably requested by any such
representative or representatives of the selling Holders, underwriter, attorney
or accountant in connection with the Shelf Registration Statement after the
filing thereof and before its effectiveness; provided, however, that any
information designated by the Issuer as confidential at the time of delivery of
such information shall be kept confidential by the recipient thereof.
If requested by any selling Holders or the underwriter(s), if any, incorporate
in the Shelf Registration Statement or Prospectus, pursuant to a supplement or
post-effective amendment if necessary, such information as such selling Holders
and underwriter(s), if any, may reasonably request to have included therein,
including, without limitation: (1) information relating to the "Plan of
Distribution" of the Registrable Securities, (2) information with respect to the
principal amount of Convertible Notes or number of shares of Common Stock being
sold, (3) the purchase price being paid therefor and (4) any other terms of the
offering of the Registrable Securities to be sold in such offering; and make all
required filings of such Prospectus supplement or post-effective amendment as
soon as reasonably practicable after the Issuer is notified of the matters to be
incorporated in such Prospectus supplement or post-effective amendment.
Furnish to each selling Holder and each of the underwriter(s), if any, without
charge, at least one copy of the Shelf Registration Statement, as first filed
with the Commission, and of each amendment thereto (and any documents
incorporated by reference therein or exhibits thereto (or exhibits incorporated
in such exhibits by reference) as such Person may request in writing).
Deliver to each selling Holder and each of the underwriter(s), if any, without
charge, as many copies of the Prospectus (including each preliminary prospectus)
and any amendment or supplement thereto as such Persons reasonably may request;
subject to any notice by the Issuer in accordance with this Section 4(b) of the
existence of any fact or event of the kind described in Section 4(b)(iii)(D),
the Issuer hereby consents to the use of the Prospectus and any amendment or
supplement thereto by each of the selling Holders and each of the
underwriter(s), if any, in connection with the offering and the sale of the
Registrable Securities covered by the Prospectus or any amendment or supplement
thereto.
If an underwriting agreement is entered into and the registration is an
Underwritten Registration, the Issuer shall:
upon request, furnish to each selling Holder and each underwriter, if any, in
such substance and scope as they may reasonably request and as are customarily
made by issuers to underwriters in primary underwritten offerings, upon the date
of closing of any sale of Registrable Securities in an Underwritten
Registration:
a certificate, dated the date of such closing, signed by (y) the Chairman of the
Board, the President or a Vice President and (z) the Chief Financial Officer of
the Issuer confirming, as of the date thereof, such matters as such parties may
reasonably request;
opinions, each dated the date of such closing, of counsel to the Issuer covering
such matters as are customarily covered in legal opinions to underwriters in
connection with primary underwritten offerings of securities; and
customary comfort letters, dated the date of such closing, from the Issuer's
independent accountants (and from any other accountants whose report is
contained or incorporated by reference in the Shelf Registration Statement), in
the customary form and covering matters of the type customarily covered in
comfort letters to underwriters in connection with primary underwritten
offerings of securities;
set forth in full in the underwriting agreement, if any, indemnification
provisions and procedures which provide rights no less protective than those set
forth in Section 6 hereof with respect to all parties to be indemnified; and
deliver such other documents and certificates as may be reasonably requested by
such parties to evidence compliance with clause (A) above and with any customary
conditions contained in the underwriting agreement or other agreement entered
into by the selling Holders pursuant to this clause (ix).
Before any public offering of Registrable Securities, cooperate with the selling
Holders, the underwriter(s), if any, and their respective counsel in connection
with the registration and qualification of the Registrable Securities under
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the securities or Blue Sky laws of such jurisdictions as the selling Holders or
underwriter(s), if any, may reasonably request and do any and all other acts or
things necessary or advisable to enable the disposition in such jurisdictions of
the Registrable Securities covered by the Shelf Registration Statement;
provided, however, that the Issuer shall not be required (A) to register or
qualify as a foreign corporation or a dealer of securities where it is not now
so qualified or to take any action that would subject it to the service of
process in any jurisdiction where it is not now so subject or (B) to subject
itself to taxation in any such jurisdiction if it is not now so subject.
Cooperate with the selling Holders and the underwriter(s), if any, to facilitate
the timely preparation and delivery of certificates representing Registrable
Securities to be sold and not bearing any restrictive legends (unless required
by applicable securities laws); and enable such Registrable Securities to be in
such denominations and registered in such names as the Holders or the
underwriter(s), if any, may reasonably request at least two Business Days before
any sale of Registrable Securities made by such underwriter(s).
Use its reasonable best efforts to cause the Registrable Securities covered by
the Shelf Registration Statement to be registered with or approved by such other
U.S. governmental agencies or authorities as may be necessary to enable the
seller or sellers thereof or the underwriter(s), if any, to consummate the
disposition of such Registrable Securities, subject to the proviso in clause (x)
above.
Subject to Section 4(b)(i) hereof, if any fact or event contemplated by Section
4(b)(iii)(D) hereof shall exist or have occurred, use its reasonable best
efforts prepare a supplement or post-effective amendment to the Shelf
Registration Statement or related Prospectus or any document incorporated
therein by reference or file any other required document so that, as thereafter
delivered to the purchasers of Registrable Securities, the Prospectus will not
contain an untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading.
Provide CUSIP numbers for all Registrable Securities not later than the
effective date of the Shelf Registration Statement and provide the Trustee under
the Indenture with certificates for the Convertible Notes that are in a form
eligible for deposit with The Depository Trust Company.
Cooperate and assist in any filings required to be made with the NASD and in the
performance of any due diligence investigation by any underwriter that is
required to be retained in accordance with the rules and regulations of the
NASD.
Otherwise use its reasonable best efforts to comply with all applicable rules
and regulations of the Commission and all reporting requirements under the rules
and regulations of the Exchange Act.
Cause the Indenture to be qualified under the TIA not later than the effective
date of the Shelf Registration Statement required by this Agreement, and, in
connection therewith, cooperate with the Trustee and the holders of Convertible
Notes 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 TIA; and
execute and use its reasonable best efforts to cause the Trustee thereunder 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.
Cause all Registrable Securities covered by the Shelf Registration Statement to
be listed or quoted, as the case may be, on each securities exchange or
automated quotation system on which securities issued by the Issuer of the same
series are then listed or quoted.
Provide promptly to each Holder upon written request each document filed with
the Commission pursuant to the requirements of Section 13 and Section 15 of the
Exchange Act after the effective date of the Shelf Registration Statement,
unless such documents are available from XXXXX.
If requested by the underwriters in an Underwritten Offering, make appropriate
officers of the Issuer reasonably available to the underwriters for meetings
with prospective purchasers of the Registrable Securities and prepare and
present to potential investors customary "road show" material in a manner
consistent with other new issuances of other securities similar to the
Registrable Securities.
Each Holder agrees by acquisition of a Registrable Security that, upon receipt
of any notice from the Issuer of the existence of any fact of the kind described
in Section 4(b)(iii)(D) hereof, such Holder will, and will use its reasonable
best efforts to cause any underwriter(s) in an Underwritten Offering to,
forthwith discontinue disposition of Registrable Securities pursuant to the
Shelf Registration Statement until:
such Holder has received copies of the supplemented or amended Prospectus
contemplated by Section 4(b)(xiii) hereof; or
such Holder is advised in writing (the "Advice") by the Issuer that the use of
the Prospectus may be resumed, and has received copies of any additional or
supplemental filings that are incorporated by reference in the Prospectus.
If so directed by the Issuer, each Holder will deliver to the Issuer (at the
Issuer's expense) all copies, other than permanent file copies then in such
Holder's possession, of the Prospectus covering such Registrable Securities that
was current at the time of receipt of such notice of suspension.
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Each Holder who intends to be named as a selling Holder in the Shelf
Registration Statement shall furnish to the Issuer in writing, within 20
Business Days after receipt of a request therefor as set forth in a
questionnaire in the form attached hereto as Annex A, such information regarding
such Holder and the proposed distribution by such Holder of its Registrable
Securities as the Issuer may reasonably request for use in connection with the
Shelf Registration Statement or Prospectus or preliminary Prospectus included
therein. Holders that do not complete the questionnaire and deliver it to the
Issuer shall not be named as selling securityholders in the Prospectus or
preliminary Prospectus included in the Shelf Registration Statement and
therefore shall not be permitted to sell any Registrable Securities pursuant to
the Shelf Registration Statement. Each Holder who intends to be named as a
selling Holder in the Shelf Registration Statement shall promptly furnish to the
Issuer in writing all information required to be disclosed in order to make
information previously furnished to the Issuer by such Holder not materially
misleading and such other information as the Issuer may from time to time
reasonably request in writing.
Upon the effectiveness of the Shelf Registration Statement, each Holder shall
notify the Issuer at least three Business Days prior to any intended
distribution of Registrable Securities pursuant to the Shelf Registration
Statement (a "Sale Notice"), which notice shall be effective for five Business
Days. Each Holder of this Security, by accepting the same, agrees to hold any
communication by the Issuer in response to a Sale Notice in confidence.
Registration Expenses.
All expenses incident to the Issuer's performance of or compliance with this
Agreement shall be borne by the Issuer regardless of whether a Shelf
Registration Statement becomes effective, including, without limitation:
all registration and filing fees and expenses (other than filings made by any
Initial Purchasers or Holders with the NASD);
all fees and expenses of compliance with federal securities and state Blue Sky
or securities laws;
all expenses of printing (including printing of Prospectuses and certificates
for the Common Stock to be issued upon conversion of the Convertible Notes),
messenger and delivery services, and telephone;
all reasonable fees and disbursements of counsel to the Issuer and, subject to
Section 5(b) below, the Holders of Registrable Securities;
all application and filing fees in connection with listing (or authorizing for
quotation) the Common Stock on a national securities exchange or automated
quotation system pursuant to the requirements hereof; and
all fees and disbursements of independent certified public accountants of the
Issuer (including the expenses of any special audit and comfort letters required
by or incident to such performance).
The Issuer shall bear its internal expenses (including, without
limitation, all salaries and expenses of its officers and employees
performing legal, accounting or other duties), the expenses of any annual
audit and the fees and expenses of any Person, including special experts,
retained by the Issuer.
In connection with the Shelf Registration Statement required by this Agreement,
the Issuer shall reimburse the Initial Purchasers and the Holders of Registrable
Securities being registered pursuant to the Shelf Registration Statement, as
applicable, for the reasonable fees and disbursements of not more than one
counsel, which shall be Xxxxxxxx & Xxxxxxxx LLP or such other chosen by a
Majority of Holders for whose benefit the Shelf Registration Statement is being
prepared and is reasonably acceptable to the Issuer. The Issuer shall not be
required to pay any underwriter discount, commission or similar fees related to
the sale of the Securities.
Indemnification and Contribution.
The Issuer shall indemnify and hold harmless each Holder, such Holder's
directors, officers, employees, representatives, agents and each person, if any,
who controls such Holder within the meaning of Section 15 of the Securities Act
(each, an "Indemnified Holder"), from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof (including, but
not limited to, any loss, claim, damage, liability or action relating to resales
of the Registrable Securities), to which such Indemnified Holder may become
subject, under the Securities Act or otherwise, insofar as any such loss, claim,
damage, liability or action arises out of, or is based upon:
any untrue statement or alleged untrue statement of a material fact contained in
(A) the Shelf Registration Statement or Prospectus or any amendment or
supplement thereto or (B) any blue sky application or other document or any
amendment or supplement thereto prepared or executed by the Issuer (or based
upon written information furnished by or on behalf of the Issuer expressly for
use in such blue sky application or other document or amendment on supplement)
filed in any jurisdiction specifically for the purpose of qualifying any or all
of the Registrable Securities under the securities law of any state or other
jurisdiction (such application or document being hereinafter called a "Blue Sky
Application"); or
the omission or alleged omission to state in the Shelf Registration Statement
any material fact required to be stated therein or necessary to make the
statements therein not misleading, or the omission or alleged omission to state
in the Prospectus any material fact required to be stated therein or necessary
to make the statements therein, in the
7
light of the circumstances under which they were made, not misleading, and shall
reimburse each Indemnified Holder promptly upon demand for any legal or other
expenses reasonably incurred by such Indemnified Holder in connection with
investigating or defending or preparing to defend against any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that the Issuer shall not be liable in any such case to the extent that any such
loss, claim, damage, liability or action arises out of, or is based upon, any
untrue statement or alleged untrue statement or omission or alleged omission
made in the Shelf Registration Statement or Prospectus or amendment or
supplement thereto or Blue Sky Application in reliance upon and in conformity
with written information furnished to the Issuer by or on behalf of any Holder
(or its related Indemnified Holder) specifically for use therein; provided,
further, that as to any preliminary Prospectus, this indemnity agreement shall
not inure to the benefit of any Indemnified Holder or any officer, employee,
representative, agent, director or controlling person of that Indemnified Holder
on account of any loss, claim, damage, liability or action arising from the sale
of the Registrable Securities sold pursuant to the Shelf Registration Statement
to any person by such Indemnified Holder if (i) that Indemnified Holder failed
to send or give a copy of the Prospectus, as the same may be amended or
supplemented and which was provided by the Company to the Indemnified Holder on
a timely basis, to that person within the time required by the Securities Act
and (ii) the untrue statement or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact in such preliminary
Prospectus was corrected, as determined by a court of competent jurisdiction in
a decision not subject to further appeal, in the Prospectus or a supplement or
amendment thereto, as the case may be, and such Prospectus was required by law
to be delivered at or prior to the written confirmation of sale to such person
or unless in each case, such failure resulted from noncompliance by the Issuer
with Section 4. The foregoing indemnity agreement is in addition to any
liability that the Issuer may otherwise have to any Indemnified Holder.
Each Holder, severally and not jointly, shall indemnify and hold harmless the
Issuer, its directors, officers, employees, representatives, agents and each
person, if any, who controls the Issuer within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and against any loss,
claim, damage or liability, joint or several, or any action in respect thereof,
to which the Issuer or any such officer, employee, representative, agent or
controlling person may become subject, insofar as any such loss, claim, damage
or liability or action arises out of, or is based upon:
any untrue statement or alleged untrue statement of any material fact contained
in the Shelf Registration Statement or Prospectus or any amendment or supplement
thereto or any Blue Sky Application; or
the omission or the alleged omission to state in the Shelf Registration
Statement any material fact required to be stated therein or necessary to make
the statements therein not misleading, or the omission or alleged omission to
state in the Prospectus any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, but in each case only to the extent that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished to the Issuer by or on behalf of such Holder (or its related
Indemnified Holder) specifically for use therein, and shall reimburse the Issuer
and any such director, officer, employee, representative, agent or controlling
person promptly upon demand for any legal or other expenses reasonably incurred
by the Issuer or any such officer, employee or controlling person in connection
with investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action as such expenses are incurred. The foregoing
indemnity agreement is in addition to any liability that any Holder may
otherwise have to the Issuer and any such director, officer, employee or
controlling person.
Promptly after receipt by an indemnified party under this Section 6 of notice of
any claim or the commencement of any action, the indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 6, notify the indemnifying party in writing of the claim or the
commencement of that action; provided, however, that the failure to notify the
indemnifying party shall not relieve it from any liability that it may have
under this Section 6 except to the extent it has been materially prejudiced by
such failure and, provided, further, that the failure to notify the indemnifying
party shall not relieve it from any liability that it may have to an indemnified
party otherwise than under this Section 6. If any such claim or action shall be
brought against an indemnified party, and it shall notify the indemnifying party
thereof, the indemnifying party shall be entitled to participate therein and, to
the extent that it wishes, jointly with any other similarly notified
indemnifying party, to assume the defense thereof with counsel satisfactory to
the indemnified party. After notice from the indemnifying party to the
indemnified party of its election to assume the defense of such claim or action,
the indemnifying party shall not be liable to the indemnified party under this
Section 6 for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof other than reasonable
costs of investigation; provided, however, that the indemnified party shall have
the right to employ counsel to represent jointly the indemnified party and its
respective directors, employees, officers and controlling persons who may be
subject to liability
8
arising out of any claim in respect of which indemnity may be sought by the
indemnified party against the indemnifying party under this Section 6 if such
indemnified party shall have been advised in writing that the representation of
such indemnified party and those directors, employees, officers and controlling
persons by the same counsel would be inappropriate under applicable standards of
professional conduct due to actual or potential differing interests between
them, and in that event the fees and expenses of such separate counsel shall be
paid by the indemnifying party. It is understood that the indemnifying party
shall not be liable for the fees and expenses of more than one separate firm (in
addition to local counsel in each jurisdiction) for all indemnified parties in
connection with any proceeding or related proceedings. Each indemnified party,
as a condition of the indemnity agreements contained in Sections 6(a) and 6(b),
shall use its reasonable best efforts to cooperate with the indemnifying party
in the defense of any such action or claim. No indemnifying party shall:
without the prior written consent of the indemnified parties (which consent
shall not be unreasonably withheld) effect any settlement of any pending or
threatened action in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of such indemnified party from all liability
arising out of such claim, action, suit or proceeding and does not include a
statement as to or an admission of fault, culpability or failure to act by or on
behalf of any indemnified party, or
be liable for any settlement of any such action effected without its written
consent (which consent shall not be unreasonably withheld), but if settled with
its written consent or if there be a final judgment for the plaintiff in any
such action, the indemnifying party agrees to indemnify and hold harmless any
indemnified party from and against any loss of liability by reason of such
settlement or judgment in accordance with this Section 6.
If the indemnification provided for in this Section 6 is unavailable or
insufficient to hold harmless an indemnified party under subsections (a) or (b)
above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to in subsection (a) or (b)
above (i) in such proportion as is appropriate to reflect the relative benefits
received by the indemnifying party or parties on the one hand and the
indemnified party on the other from the registration of the Registrable
Securities pursuant to the Shelf Registration, or (ii) if the allocation
provided by the foregoing clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the indemnifying party or
parties on the one hand and the indemnified party on the other in connection
with the statements or omissions that resulted in such losses, claims, damages
or liabilities (or actions in respect thereof) as well as any other relevant
equitable considerations. The relative fault of the parties shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Issuer on the one hand or
such Holder or such other indemnified party, as the case may be, on the other,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The amount paid by
an indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any action or claim which is
the subject of this subsection (d). Notwithstanding any other provision of this
Section 6(d), the Holders of the Registrable Securities shall not be required to
contribute any amount in excess of the amount by which the gross proceeds
received by such Holders from the sale of the Registrable Securities pursuant to
the Shelf Registration Statement exceeds the amount of damages which such
Holders have otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this paragraph (d), each person,
if any, who controls such indemnified party within the meaning of the Securities
Act or the Exchange Act shall have the same rights to contribution as such
indemnified party and each person, if any, who controls the Issuer within the
meaning of the Securities Act or the Exchange Act shall have the same rights to
contribution as the Issuer.
The indemnity and contribution provisions contained in this Section 6 shall
remain operative and in full force and effect regardless of (i) any termination
of this Agreement, (ii) any investigation made by or on behalf of any Initial
Purchaser, any Holder or any person controlling any Initial Purchaser or any
Holder, or by or on behalf of the Issuer, its officers or directors or any
person controlling the Issuer, and (iii) any sale of Registrable Securities
pursuant to the Shelf Registration Statement.
Rule 144A.
In the event the Issuer is not subject to Section 13 or 15(d) of the Exchange
Act, the Issuer hereby agrees with each Holder, for so long as any Registrable
Securities remain outstanding, to make available to any Holder or beneficial
9
owner of Registrable Securities in connection with any sale thereof and any
prospective purchaser of such Registrable Securities from such Holder or
beneficial owner, the information required by Rule 144A(d)(4) under the
Securities Act in order to permit resales of such Registrable Securities
pursuant to Rule 144A.
Underwritten Registrations.
The Underwriting Majority may sell its Registrable Securities in an Underwritten
Offering pursuant to the Shelf Registration Statement only with the Issuer's
consent, which consent may be granted or withheld in the Issuer's sole
discretion.
Participation of Holders. No Holder may participate in any Underwritten
Registration hereunder unless such Holder:
agrees to sell such Holder's Registrable Securities on the basis provided in any
underwriting arrangements approved by the Persons entitled hereunder to approve
such arrangements; and
completes and executes all reasonable questionnaires, powers of attorney,
indemnities, underwriting agreements, lock-up letters and other documents
reasonably required under the terms of such underwriting arrangements.
Selection of Underwriters. In any such Underwritten Offering, the investment
banker or investment bankers and manager or managers that will administer the
offering will be selected by a Majority of Holders whose Registrable Securities
are included in such Underwriting Offering; provided, that such investment
bankers and managers must be reasonably satisfactory to the Issuer.
Miscellaneous.
Remedies. The Issuer acknowledges and agrees that any failure by the Issuer to
comply with its obligations under Section 2 hereof may result in material
irreparable injury to the Initial Purchasers or the Holders for which there is
no adequate remedy at law, that it will not be possible to measure damages for
such injuries precisely and that, in the event of any such failure, the Initial
Purchasers or any Holder may obtain such relief as may be required to
specifically enforce the Issuer's obligations under Section 2 hereof. The Issuer
further agrees to waive the defense in any action for specific performance that
a remedy at law would be adequate.
No Inconsistent Agreements. The Issuer will not, on or after the date of this
Agreement, enter into any agreement with respect to its securities that is
inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof. In addition, the Issuer shall
not grant to any of its security holders (other than the holders of Registrable
Securities in such capacity) the right to include any of its securities in the
Shelf Registration Statement provided for in this Agreement other than the
Registrable Securities. Other than as disclosed in the Issuer's Offering
Memorandum dated February 13, 2002, the Issuer has not previously entered into
any agreement (which has not expired or been terminated) granting any
registration rights with respect to its securities to any Person, which rights
conflict with the provisions hereof.
Adjustments Affecting Registrable Securities. The Issuer shall not, directly or
indirectly, take any action with respect to the Registrable Securities as a
class that would adversely affect the ability of the Holders of Registrable
Securities to include such Registrable Securities in a registration undertaken
pursuant to this Agreement.
Amendments and Waivers. This Agreement may not be amended, modified or
supplemented, and waivers or consents to or departures from the provisions
hereof may not be given, unless the Issuer has obtained the written consent of a
Majority of Holders; provided, however, that no amendment, modification,
supplement, waiver or consent to or departure from the provisions of Section 6
that materially and adversely affects a Holder hereof shall be effective as
against any such Holder of Registrable Securities unless consented to in writing
by such Holder.
Notices. All notices and other communications provided for or permitted
hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
if to a Holder, at the address set forth on the records of the registrar under
the Indenture or the transfer agent of the Common Stock, as the case may be; and
if to the Issuer:
Computer Network Technology Corporation
0000 Xxxxxx Xxxx Xxxxx
Xxxxxxxx, Xxxxxxxxx 00000
Fax No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx
With a copy to:
00
Xxxxxxx, Xxxxxx and Deinard Professional Association
Suite 2300
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Fax No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
if to the Initial Purchasers:
c/o Bear, Xxxxxxx & Co. Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax No.: (000) 000-0000
Attention: Convertible Capital Markets
With a copy to:
Xxxxxxxx & Xxxxxxxx LLP
000 Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Fax No.: (000) 000-0000
Attention: Xxxx X. Xxxxxxxx
All such notices and communications shall be deemed to have been duly given: at
the time delivered by hand, if personally delivered; five Business Days after
being deposited in the mail, postage prepaid, if mailed; when answered back, if
telexed; when receipt acknowledged, if telecopied; and on the next Business Day,
if timely delivered to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
A document or notice shall be deemed to have been furnished to the Holders of
the Registrable Securities if it is provided to the registered holders of the
Registrable Securities at the address set forth in clause (i) above.
11
Successors and Assigns. This Agreement shall inure to the benefit of and be
binding upon the successors, assigns and transferees of each of the parties,
including without limitation and without the need for an express assignment,
subsequent Holders of Registrable Securities; provided, however, that (i)
nothing contained herein shall be deemed to permit any assignment, transfer or
other disposition of Registrable Securities in violation of the terms of the
Purchase Agreement or the Indenture and (ii) this Agreement shall not inure to
the benefit of or be binding upon a successor or assign of a Holder unless and
to the extent such successor or assign acquired Registrable Securities from such
Holder. If any transferee of any Holder shall acquire Registrable Securities, in
any manner, whether by operation of law or otherwise, such Registrable
Securities shall be held subject to all of the terms of this Agreement, and by
taking and holding such Registrable Securities such person shall be conclusively
deemed to have agreed to be bound by and to perform all of the terms and
provisions of this Agreement and such Person shall be entitled to receive the
benefits hereof. The Initial Purchasers (in their capacity as Initial
Purchasers) shall have no liability or obligation to the Issuer with respect to
any failure by a Holder to comply with, or breach by any Holder of, any of the
obligations of such Holder under this Agreement.
Purchases and Sales of Convertible Notes. The Issuer shall not, and shall use
its reasonable best efforts to cause its affiliates (as defined in Rule 405
under the Securities Act) within its Control not to, resell or otherwise
transfer any Convertible Notes acquired by the Company or such affiliates,
except pursuant to an effective registration statement under the Securities Act
or an exemption therefrom.
Third Party Beneficiary. The Holders shall be third party beneficiaries to the
agreements made hereunder between the Issuer and the Initial Purchasers, and
such Initial Purchasers shall have the right to enforce such agreements directly
to the extent they deem such enforcement necessary or advisable to protect their
rights or the rights of Holders hereunder.
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.
Securities Held by the Issuer or Their Affiliates. Whenever the consent or
approval of Holders of a specified percentage of Registrable Securities is
required hereunder, Registrable Securities held by the Issuer or its affiliates
(as such term is defined in Rule 405 under the Securities Act) shall not be
counted in determining whether such consent or approval was given by the Holders
of such required percentage.
Headings. The headings in this Agreement are for convenience of reference only
and shall not limit or otherwise affect the meaning hereof.
Governing Law. This agreement shall be governed by, and construed in accordance
with, the laws of the State of New York.
Consent to Jurisdiction. Each party irrevocably agrees that any legal suit,
action or proceeding arising out of or based upon this Agreement or the
transactions contemplated hereby ("Related Proceedings") may be instituted in
the federal courts of the United States of America located in the City of New
York or the courts of the State of New York in each case located in the Borough
of Manhattan in the City of New York (collectively, the "Specified Courts"), and
irrevocably submits to the exclusive jurisdiction (except for proceedings
instituted in regard to the enforcement of a judgment of any such court (a
"Related Judgment"), as to which such Jurisdiction is non-exclusive) of such
courts in any such suit, action or proceeding. The parties further agree that
service of any process, summons, notice or document by mail to such party's
address set forth above shall be effective service of process for any lawsuit,
action or other proceeding brought in any such court. The parties hereby
irrevocably and unconditionally waive any objection to the laying of venue of
any lawsuit, action or other proceeding in the Specified Courts, and hereby
further irrevocably and unconditionally waive and agree not to plead or claim in
any such court that any such lawsuit, action or other proceeding brought in any
such court has been brought in an inconvenient forum.
Severability. If any one or more of the provisions contained herein, or the
application thereof in any circumstance, is held invalid, illegal or
unenforceable, the validity, legality and enforceability of any such provision
in every other respect and of the remaining provisions contained herein shall
not be affected or impaired thereby.
Entire Agreement. This Agreement, together with the Purchase Agreement and the
Indenture, is intended by the parties as a final expression of their agreement
and intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained
herein. There are no restrictions, promises, warranties or undertakings, other
than those set forth or referred to herein with respect to the registration
rights granted by the Issuer with respect to the Registrable Securities. This
Agreement supersedes all prior agreements and understandings between the parties
with respect to such subject matter.
[Signature page to follow]
12
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
Very truly yours,
COMPUTER NETWORK TECHNOLOGY CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx, CFO
------------------------------------
Name:
Title:
The foregoing Registration Rights Agreement is hereby confirmed and accepted as
of the date first above written.
BEAR, XXXXXXX & CO. INC.,
on behalf of the Initial Purchasers
By /s/ Xxxxxx Xxxxxx
-------------------------------------
Name:
Title:
Signature Page
ANNEX A
COMPUTER NETWORK TECHNOLOGY CORPORATION
NOTICE OF REGISTRATION STATEMENT
AND SELLING SECURITYHOLDER ELECTION AND QUESTIONNAIRE
NOTICE
Computer Network Technology Corporation (the "Company") has filed, or intends
shortly to file, with the Securities and Exchange Commission (the "Commission")
a registration statement on Form S-3 or such other Form as may be available (the
"Shelf Registration Statement") for the registration and resale under Rule 415
of the Securities Act of 1933, as amended (the "Securities Act"), of the
Company's 3% Convertible Subordinated Notes due February 15, 2007 (CUSIP No.
204-925-AB7) (the "Notes"), and common stock, $0.01 par value per share,
issuable upon conversion and thereof (the "Shares" and together with the Notes,
the "Transfer Restricted Securities") in accordance with the terms of the
Registration Rights Agreement, dated as of February 20, 2002 (the "Registration
Rights Agreement") among the Company and Bear, Xxxxxxx & Co. Inc., XX Xxxxx
Securities Corporation and SoundView Technology Corporation. A copy of the
Registration Rights Agreement is available from the Company. All capitalized
terms not otherwise defined herein have the meaning ascribed thereto in the
Registration Rights Agreement.
To sell or otherwise dispose of any Transfer Restricted Securities pursuant to
the Shelf Registration Statement, a beneficial owner of Transfer Restricted
Securities generally will be required to be named as a selling securityholder in
the related Prospectus, deliver a Prospectus to purchasers of Transfer
Restricted Securities, be subject to certain civil liability provisions of the
Securities Act and be bound by those provisions of the Registration Rights
Agreement applicable to such beneficial owner (including certain indemnification
rights and obligations, as described below). To be included in the Shelf
Registration Statement, this Election and Questionnaire must be completed,
executed and delivered to the Company at the address set forth herein for
receipt prior to or on the 20th business day from the receipt hereof (the
"Election and Questionnaire Deadline"). Beneficial Owners that do not complete
and return this Election and Questionnaire prior to the Election and
Questionnaire Deadline and deliver it to the Company as provided below will not
be named as Selling Securityholders in the Shelf Registration Statement and
therefore will not be permitted to sell any Transfer Restricted Securities
pursuant to the Shelf Registration Statement.
Certain legal consequences arise from being named as a selling securityholder in
the Shelf Registration Statement and the related Prospectus. Accordingly,
holders and beneficial owners of Transfer Restricted Securities are advised to
consult their own securities law counsel regarding the consequences of being
named or not being named as a selling securityholder in the Shelf Registration
Statement and the related Prospectus.
ELECTION
The undersigned holder (the "Selling Securityholder") of Transfer Restricted
Securities hereby elects to include in the Shelf Registration Statement the
Transfer Restricted Securities beneficially owned by it and listed below in Item
3 (unless otherwise specified under Item 3). The undersigned, by signing and
returning this Election and Questionnaire, understands that it will be bound
with respect to such Transfer Restricted Securities by the terms and conditions
of this Election and Questionnaire and the Registration Rights Agreement.
Pursuant to the Registration Rights Agreement, the Selling Securityholder has
agreed to indemnify and hold harmless the Company, the Company's directors, the
Company's officers, employees, representatives and agents who sign the Shelf
Registration Statement and each person, if any, who controls the Company within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act, from and against certain losses arising in connection with
statements concerning the Selling Securityholder made in the Shelf Registration
Statement or the related Prospectus in reliance upon the information provided in
this Election and Questionnaire.
The Selling Securityholder hereby provides the following information to the
Company and represents and warrants that such information is accurate and
complete:
QUESTIONNAIRE
FULL LEGAL NAME OF SELLING SECURITYHOLDER:
--------------------------------------------------------------------------------
FULL LEGAL NAME OF REGISTERED HOLDER (IF NOT THE SAME AS (a) ABOVE) THROUGH
WHICH TRANSFER RESTRICTED SECURITIES LISTED IN (3) BELOW ARE HELD:
--------------------------------------------------------------------------------
FULL LEGAL NAME OF DTC PARTICIPANT (IF APPLICABLE AND IF NOT THE SAME AS (b)
ABOVE) THROUGH WHICH TRANSFER RESTRICTED SECURITIES LISTED IN (3) ARE HELD:
--------------------------------------------------------------------------------
ADDRESS FOR NOTICES TO SELLING SECURITYHOLDERS:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Telephone: Fax:
----------------------------- -------------------------
Contact Person:
--------------------------------------------------------------
BENEFICIAL OWNERSHIP OF TRANSFER RESTRICTED SECURITIES:
Type of Transfer Restricted Securities beneficially owned, and principal amount
of Notes or Number of shares of Common Stock, as the case may be, beneficially
owned:
CUSIP No(s). of such Transfer Restricted Securities beneficially owned:
BENEFICIAL OWNERSHIP OF THE COMPANY'S SECURITIES OWNED BY THE SELLING
SECURITYHOLDER:
EXCEPT AS SET FORTH BELOW IN THIS ITEM (4), THE UNDERSIGNED IS NOT THE
BENEFICIAL OR REGISTERED OWNER OF ANY SECURITIES OF THE COMPANY OTHER THAN THE
TRANSFER RESTRICTED SECURITIES LISTED ABOVE IN ITEM (3) ("Other Securities").
TYPE AND AMOUNT OF OTHER SECURITIES BENEFICIALLY OWNED BY THE SELLING
SECURITYHOLDER:
--------------------------------------------------------------------------------
CUSIP NO(s). OF SUCH OTHER SECURITIES BENEFICIALLY OWNED:
--------------------------------------------------------------------------------
RELATIONSHIP WITH THE COMPANY
Except as set forth below, neither the undersigned nor any of its affiliates,
officers, directors or principal equity holders (5% or more) has held any
position or office or has had any other material relationship with the Company
(or their predecessors or affiliates) during the past three years.
State any exceptions here:
--------------------------------------------------------------------------------
PLAN OF DISTRIBUTION:
Except as set forth below, the undersigned (including its donees or pledgees)
intends to distribute the Transfer Restricted Securities listed above in Item
(3) pursuant to the Shelf Registration Statement only as follows (if at all).
Such Transfer Restricted Securities may be sold from time to time directly by
the undersigned or, alternatively, through underwriters, broker-dealers or
agents. If the Transfer Restricted Securities are sold through underwriters or
broker-dealers, the Selling Securityholder will be responsible for underwriting
discounts or commissions or agent's commissions. Such Transfer Restricted
Securities may be sold in one or more transactions at fixed prices, at
prevailing market prices at the time of sale, at varying prices determined at
the time of sale, or at negotiated prices. Such sales may be effected in
transactions (which may involve crosses or block transactions):
on any national securities exchange or quotation service on which the Transfer
Restricted Securities may be listed or quoted at the time of sale;
in the over-the-counter market;
in transactions otherwise than on such exchanges or services or in the
over-the-counter market; or
through the writing of options.
In connection with sales of the Transfer Restricted Securities or otherwise, the
undersigned may enter into hedging transactions with broker-dealers, which may
in turn engage in short sales of the Transfer Restricted Securities and deliver
Transfer Restricted Securities to close out such short positions, or loan or
pledge Transfer Restricted Securities to broker-dealers that in turn may sell
such securities. State any exceptions here:
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Note: In no event will such method(s) of distribution take the form of an
underwritten offering of the Transfer Restricted Securities without the prior
agreement of the Company.
By signing below, the Selling Securityholder acknowledges that it understands
its obligation to comply, and agrees it will comply, with the provisions of the
prospectus delivery and other provisions of the Securities Act and Exchange Act
and the respective rules and regulations promulgated thereunder, particularly
Regulation M thereunder (or any successor rules or regulations), in connection
with any offering of Transfer Restricted Securities pursuant to the Shelf
Registration Statement.
If the Selling Securityholder transfers all or any portion of the Transfer
Restricted Securities listed in Item 3 above after the date on which such
information is provided to the Company, the Selling Securityholder agrees to
notify
the transferee(s) at the time of the transfer of its rights and obligations
under this Election and Questionnaire and the Registration Rights Agreement.
By signing below, the Selling Securityholder consents to the disclosure of the
information contained herein in its answers to Items (1) through (6) above and
the inclusion of such information in the Shelf Registration Statement and the
related Prospectus. The Selling Securityholder understands that such information
will be relied upon by the Company in connection with the preparation or
amendment of the Shelf Registration Statement and the related Prospectus.
In accordance with the Selling Securityholder's obligation under the
Registration Rights Agreement to provide such information as may be required by
law for inclusion in the Shelf Registration Statement, the Selling
Securityholder agrees to promptly notify the Company of any inaccuracies or
changes in the information provided herein that may occur subsequent to the date
hereof at any time while the Shelf Registration Statement remains effective. All
notices hereunder and pursuant to the Registration Rights Agreement shall be
made in writing at the address set forth below.
Once this Election and Questionnaire is executed by the Selling Securityholders
and received by the Company, the terms of this Election and Questionnaire and
the representations and warranties contained herein shall be binding on, shall
inure to the benefit of and shall be enforceable by the respective successors,
heirs, personal representatives and assigns of the Company and the Selling
Securityholder with respect to the Transfer Restricted Securities beneficially
owned by such Selling Securityholder and listed in Item 3 above. This Agreement
shall be governed by, and construed in accordance with, the laws of the State of
New York.
IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused this
Election and Questionnaire to be executed and delivered either in person or by
its authorized agent.
Dated:
Beneficial Owner
By:
-----------------------------------
Name:
Title:
Please return the completed and executed Election and Questionnaire for receipt
PRIOR TO OR ON THE 20TH BUSINESS DAY FROM RECEIPT HEREOF to Computer Network
Technology Corporation at:
Computer Network Technology Corporation
0000 Xxxxxx Xxxx Xxxxx
Xxxxxxxx, Xxxxxxxxx 00000
Attention: Chief Financial Officer
EXHIBIT 1 TO ANNEX A
NOTICE TO TRANSFER PURSUANT
TO REGISTRATION STATEMENT
Computer Network Technology Corporation
0000 Xxxxxx Xxxx Xxxxx
Xxxxxxxx, Xxxxxxxxx 00000
U.S. Bank National Association
000 Xxxx Xxxxx Xxxxxx
Xx. Xxxx, XX 00000
Attention: Corporate Trust Department
Re: Computer Network Technology Corporation
3% Convertible Subordinated Notes due February 15, 2007
(the "Notes")
Dear Sirs:
Please be advised that __________ has transferred $_________ aggregate principal
amount of the above-referenced Notes or ____________________________ shares of
the Company's Common Stock issued on conversion or repurchase of Notes, pursuant
to the Registration Statement on Form S-3 (File No. 333- __________ ) filed by
the Company.
We hereby certify that the prospectus delivery requirements, if any, of the
Securities Act of 1933, as amended, have been satisfied with respect to the
transfer described above and that the above named beneficial owner of the Notes
or Common Stock is named as a selling securityholder in the Prospectus dated
_____________________ , or in amendments or supplements thereto, and that the
aggregate principal amount of the Notes or number of shares of Common Stock
transferred are [all or a portion of] the Notes or Common Stock listed in such
Prospectus, as amended or supplemented, opposite such owner's name.
Very truly yours,
[name]
By:
--------------------------------
(Authorized signature)
Dated:
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