EXHIBIT 4.1
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and entered
into as of January 31, 2002, between LSI Logic Corporation, a Delaware
corporation ("Purchaser"), and Xxxxxxxx LLC (the "LLC"). Capitalized terms used
herein and not otherwise defined shall have the meanings given such terms in
that certain Asset Purchase Agreement dated as of May 25, 2001, by and between
Purchaser and American Megatrends, Inc., a Georgia corporation
("Seller")(together with exhibits and schedules thereto, the "Asset Purchase
Agreement").
RECITALS
A. WHEREAS, pursuant to the Asset Purchase Agreement, Purchaser
purchased all the Assets and Properties of Seller, including the Seller
Intellectual Property, which either are used or held for use by Seller primarily
in, or are necessary for, the conduct of the Business as a going concern (the
"Purchase");
B. WHEREAS, LLC is the holder of certain shares of Purchaser's Common
Stock received in connection with the Asset Purchase and related transactions.
C. WHEREAS, Purchaser desires to grant LLC registration rights as
provided herein.
NOW, THEREFORE, in consideration of the promises and the mutual
covenants and agreements herein contained, Purchaser and LLC agree as follows:
1. Definitions of Certain Terms. As used herein, the following terms
shall have the following meanings.
(a) "Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC issued thereunder, as
they may be in effect from time to time.
(b) "Form S-3" means such form under the Securities Act as in
effect on the date hereof or any registration form under the Securities
Act subsequently adopted by the SEC which similarly permits inclusion or
incorporation of substantial information by reference to other documents
filed by the Company with the commission.
(c) "Holder" means LLC and any other person or entity holding
Registrable Shares to whom the registration rights granted in this
Agreement have been transferred pursuant to Section 8 hereof.
(d) "Registrable Shares" means (i) the 651,488 shares of
Purchaser Common Stock held by LLC (including shares held by Purchaser
in escrow), and (ii) any other securities issued by Purchaser as a
dividend or other distribution with respect to, or in exchange for or in
replacement of, such shares; provided, however, Registrable Shares shall
not include shares of Purchaser Common Stock that have been registered
under the Securities Act and disposed of pursuant to the registration
statement used to effect such registration or that can be sold without
registration in accordance with Rule 144 of the Securities Act assuming
full vesting of the shares.
(e) "SEC" means the United States Securities and Exchange
Commission, or any governmental agency succeeding to its functions.
(f) "Securities Act" means the Securities Act of 1933, as
amended, and the rules and regulations of the SEC issued thereunder, as
they may be in effect from time to time.
2. Shelf Registration. Purchaser agrees that as soon as practicable, but
not later than forty-five (45) days after January 31, 2002, Purchaser shall
cause to be filed a registration statement (a "Shelf Registration") on Form S-3
under the Securities Act for an offering to be made on a delayed or continuous
basis pursuant to Rule 415 thereunder or any similar rule that may be adopted by
the SEC and permitting sales in ordinary course brokerage or dealer transactions
not involving any underwritten public offering, covering all of the Registrable
Shares. Purchaser shall use commercially reasonable efforts thereafter (a) to
cause the Shelf Registration to be declared effective by the SEC as promptly as
practicable and (b) subject to Sections 3 and 4 hereof, to keep the Shelf
Registration continuously effective until the earlier to occur of (i) subject to
any extension of time pursuant to Section 4(b) of this Agreement, December 31,
2002, (the period from the Closing Date until December 31, 2002, being referred
to as the "Time Period"), and (ii) the first date on which no Registrable Shares
originally covered by the Shelf Registration shall constitute Registrable Shares
(such period during which the Shelf Registration is effective is referred to
herein as the "Registration Period").
3. Registration Procedures. After Purchaser commences the registration
of the Registrable Shares pursuant to the Shelf Registration, Purchaser shall
take all reasonable actions to permit registration and sale of the Registrable
Shares pursuant to the Shelf Registration, including the following:
(a) furnish to the Holders such number of copies of the Shelf
Registration, each amendment and supplement thereto (in each case including all
exhibits thereto), the prospectus included in the Shelf Registration (including
any preliminary prospectus) and such other documents as the Holders may
reasonably request in order to facilitate the disposition of the Registrable
Shares owned by the Holders;
(b) use commercially reasonable efforts to register or qualify
such Registrable Shares under such other securities or "blue sky" laws of such
jurisdictions as the LLC reasonably requests in writing and to do any and all
other acts and things that may be reasonably necessary or advisable to register
or qualify for sale in such jurisdictions the Registrable Shares owned by the
Holders; provided, however, that Purchaser shall not be required (i) to qualify
to do business in any jurisdiction where it is not then so qualified or (ii) to
consent to general service of process in any jurisdiction where it is not then
so subject to service of process; and
(c) use commercially reasonable efforts as promptly as
practicable to cause all Registrable Shares covered by the Shelf Registration to
be listed on the New York Stock Exchange or other securities exchange or market,
if any, on which similar securities issued by Purchaser are then listed.
4. Stop Order; Postponement of Registration.
(a) Purchaser will notify the Holders promptly of (i) the
issuance of any stop order suspending the effectiveness of the Shelf
Registration or (ii) the receipt by Purchaser of any notification with respect
to the suspension of the qualification of the Registrable Shares for sale in any
jurisdiction. Immediately upon receipt of any such notice, the Holders shall
cease to offer and sell any Registrable Shares pursuant to the Shelf
Registration in the jurisdiction to which such stop order or suspension relates.
Purchaser shall use all reasonable efforts to prevent the issuance of any such
stop order or the suspension of any such qualification and, if any such stop
order is issued or any such qualification is suspended, to obtain as soon as
possible the withdrawal or revocation thereof, and will notify the Holders at
the earliest practicable date of the date on which the Holders may offer and
sell Registrable Shares pursuant to the Shelf Registration.
(b) Purchaser will notify the Holders promptly of the occurrence
of any event or the existence of any state of facts that, in the reasonable
judgment of Purchaser, is required to be set forth in the prospectus
used in connection with the Shelf Registration (the "Prospectus"); provided,
however, that Purchaser shall not be required to disclose such event or facts,
or the nature thereof, to the Holders. Immediately upon receipt of such notice,
the Holders shall cease to offer or sell any Registrable Shares pursuant to such
Prospectus, cease to deliver or use such Prospectus and, if so requested by
Purchaser, return to Purchaser, at Purchaser's expense, all copies (other than
permanent file copies) of such Prospectus. Promptly after Purchaser determines
that the information may be included in an amendment or supplement to the
Prospectus, Purchaser will use commercially reasonable efforts to amend or
supplement such Prospectus as promptly as practicable in order to set forth or
reflect such event or state of facts. In the event that Purchaser determines in
good faith that the disclosure of such information would be detrimental to
Purchaser or its shareholders, Purchaser shall be permitted to delay the filing
of such an amendment or supplement to the Prospectus for a period of time to
extend no longer than sixty (60) days. Purchaser shall not exercise this delay
right more than three times in any twelve month period. Purchaser will furnish
copies of such amendment or supplement to the Prospectus to the Holders. In the
event Holders are prevented from selling Registrable Shares through the Shelf
Registration as a result of this Section 4(b), then the Time Period shall be
extended by the number of days that such Holders are prevented from making such
sales as a result of this Section 4(b).
5. Information Concerning the Holders.
(a) The obligations of Purchaser to take the actions contemplated
by Sections 2 and 3 hereof with respect to an offering of Registrable Shares
shall be subject to the condition that each Holder shall (i) conform to all
applicable requirements of the Securities Act and the Exchange Act with respect
to the offering and sale of securities and (ii) advise each underwriter, broker
or dealer through which any of such Registrable Shares are offered that such
Registrable Shares are part of a distribution that is subject to the prospectus
delivery requirements of the Securities Act. Each Holder shall furnish to
Purchaser in writing such information and furnish such documents as may be
reasonably required by Purchaser in the preparation of (A) the Prospectus (or
any amendment or supplement thereto) with respect to any offering of Registrable
Shares and (B) any qualification of such Registrable Shares under state
securities or "blue sky" laws pursuant to Section 3(b) hereof, and shall
promptly notify Purchaser of the occurrence, from the date on which such
information or documents are furnished to the date of the closing for the sale
of such Registrable Shares, of any event relating to such Holder that is
required under the Securities Act to be set forth in the Prospectus (or any
amendment or supplement thereto).
(b) At the end of the Registration Period, the Holders shall
discontinue sales of Registrable Shares pursuant to the Shelf Registration after
Purchaser has given notice to the Holders of its intention to remove from
registration the securities covered by the Registration Statement which remain
unsold, and the Holders shall notify Purchaser promptly upon receipt of such
notice from Purchaser of the number of shares of the Holders that are registered
but remain unsold.
6. Expenses of Registration. Purchaser shall pay all reasonable expenses
incident to its performance of or compliance with this Agreement and
registration of Registrable Shares in connection herewith, including (a) all
SEC, stock exchange or market and National Association of Securities Dealers,
Inc. registration and filing fees, (b) all fees and expenses incurred in
complying with securities or "blue sky" laws, (c) all printing, messenger and
delivery expenses, (d) all fees and disbursements of Purchaser's independent
public accountants and counsel, and (e) the reasonable fees and expenses of
counsel to the Holders, not to exceed a total of ten thousand dollars ($10,000)
(all of such expenses herein referred to as "Registration Expenses"). The
Registration Expenses shall not include any sales or underwriting discounts,
commissions or fees attributable to the sale of the Registrable Shares, which
shall be borne by the Holders.
7. Indemnification and Contribution.
(a) Purchaser agrees to indemnify, to the extent permitted by law
and subject to the terms of this
Agreement, each Holder and its directors, officers, employees and agents and
each person, if any, who controls such Holder (within the meaning of the
Securities Act) against any losses, claims, damages, liabilities and expenses
(including reasonable attorneys' fees) arising out of or based upon any untrue
or alleged untrue statement of a material fact contained in the Shelf
Registration (or any amendment thereto) or the Prospectus (or any amendment or
supplement thereto) or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
made therein in the light of the circumstances under which they were made not
misleading; provided, however, that Purchaser shall not be liable to any Holder
or its directors, officers, employees or agents or each person, if any, who
controls such Holder (within the meaning of the Securities Act) (i) to the
extent that any such loss, claim, damage, liability or expense arises out of, or
is based upon any untrue or alleged untrue statement, or any omission, if such
statement or omission shall have been made in reliance upon and in conformity
with information relating to such Holder or person furnished in writing to
Purchaser by such Holder or person expressly for use in the preparation of the
Shelf Registration (or any amendment thereto) or the Prospectus (or any
amendment or supplement thereto) or (ii) if a copy of the Prospectus (or any
amendment thereto) relating to the Shelf Registration was not sent or given by
or on behalf of such Holder to a purchaser of the Holder's Registrable Shares,
if required by law so to have been delivered, at or prior to the written
confirmation of the sale of the Registrable Shares to such purchaser, and if the
Prospectus (as so amended or supplemented) would have cured the defect giving
rise to such loss, claim, damage or liability.
(b) In connection with the Shelf Registration, each Holder will
indemnify, to the extent permitted by law and subject to the terms of this
Agreement, Purchaser, its directors, officers, employees and agents and each
person who controls Purchaser (within the meaning of the Securities Act) against
any losses, claims, damages, liabilities and expenses (including reasonable
attorneys' fees) arising out of or based upon any untrue or alleged untrue
statement of a material fact contained in the Shelf Registration (or any
amendment thereto) or the Prospectus (or any amendment or supplement thereto) or
any omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements made therein in the light of
the circumstances under which they were made not misleading, to the extent that
such untrue statement or omission was made in reliance upon and in conformity
with information furnished in writing to Purchaser by such Holder expressly for
use in the preparation of the Shelf Registration (or any amendment thereto) or
the Prospectus (or any amendment or supplement thereto); provided, that the
liability of each Holder hereunder shall be limited to the proportion of any
such loss, claim, damage, liability or expense which is equal to the proportion
that the public offering price of the shares sold by such Holder under such
registration statement bears to the total public offering price of all
securities sold thereunder, but not in any event to exceed the net proceeds
received by such Holder.
(c) Each party entitled to indemnification under this Section 7
(the "Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom; provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not be unreasonably
withheld or delayed); and provided, further, that the delay or failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Section 7, except to the extent
and only to the extent that the Indemnifying Party shall have been materially
adversely affected by such delay or failure. The Indemnified Party may
participate in such defense at the Indemnified Party's expense; provided,
however, that the Indemnifying Party shall pay any such reasonable expense if
the Indemnified Party shall have reasonably concluded that there may be a
conflict between the positions of the Indemnifying Party and the Indemnified
Party in conducting the defense of any such claim or litigation resulting
therefrom. No Indemnified Party shall consent to entry of any judgment or settle
any claim or litigation without the prior written consent of the Indemnifying
Party, which consent shall not be unreasonably withheld or delayed.
(d) If the indemnification provided for in this Section 7 from
the Indemnifying Party is unavailable
to an Indemnified Party hereunder in respect of any losses, claims, damages,
liabilities or expenses referred to therein as a result of a judicial
determination that such indemnification may not be enforced in such case
notwithstanding this Agreement, the 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 or
expenses in such proportion as is appropriate to reflect the relative fault of
the Indemnifying Party and Indemnified Party in connection with the actions
which resulted in such losses, claims, damages, liabilities or expense, as well
as any other relevant equitable considerations. The relative fault of such
Indemnifying Party and Indemnified Party shall be determined by reference to,
among other things, whether any action in question, including any untrue or
alleged untrue statement of material fact or omission or alleged omission to
state a material fact, has been made by, or relates to information supplied by,
such Indemnifying Party or Indemnified Party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
action; provided, however, that no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation and no Holder will be required to contribute any amount in
excess of the net proceeds received by such Holder of all such Registrable Stock
sold by it pursuant to such Registration Statement.
8. Transfer of Registration Rights. The registration rights of LLC
under this Agreement may not be transferred without Purchaser's prior written
consent, except for a gratuitous transfer to any trust established by the member
of the LLC for the benefit of such member's spouse or any of such member's
lineal descendants, and unless and until any permitted transferee has executed
and delivered such agreements as Purchaser may reasonably require in order to
confirm that such transferee agrees to be bound by this Agreement.
9. Amendment of Registration Rights. This Agreement may not be amended,
modified or supplemented by the parties hereto in any manner, except by a
written instrument that is signed by Purchaser, the LLC, and other Holders, if
any.
10. Termination. The registration rights set forth in this Agreement
shall terminate as to any Holder at the earlier of such time as (i) subject to
any extension of time pursuant to Section 4(b) of this Agreement, the first
anniversary of the Closing Date, or (ii) the first date on which no Registrable
Shares originally covered by the Shelf Registration shall constitute Registrable
Shares.
11. Grant of Additional Registration Rights. LLC and the Holders
acknowledge that Purchaser may make other acquisitions and may enter into
employment and business arrangements in connection therewith and in the course
of such acquisitions and arrangements may grant registration rights with respect
to the shares of Purchaser stock issued in connection with such transactions on
terms that would be negotiated at such time and may be materially different than
the terms of this Agreement.
12. No Waiver. The terms and conditions of this Agreement may be waived
only by a written instrument (a) signed by the LLC in the case where a Holder or
the LLC is waiving compliance and (b) signed by Purchaser in the case where
Purchaser is waiving compliance. The failure of any party hereto to enforce at
any time any of the provisions of this Agreement shall in no way be construed to
be a waiver of any such provision, nor in any way to affect the validity of this
Agreement or any part hereof or the right of such party thereafter to enforce
each and every such provision. No waiver of any breach of or non-compliance with
this Agreement shall be held to be a waiver of any other or subsequent breach or
non-compliance. The rights and remedies herein provided are cumulative and are
not exclusive of any rights or remedies that any party may otherwise have at law
or in equity.
13. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of California, regardless of
the other laws that might govern under applicable principles of conflicts of
laws thereof.
14. Notice. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered by hand, sent by facsimile
transmission with confirmation of receipt, sent via a reputable overnight
courier service with confirmation of receipt requested, or mailed by registered
or certified mail (postage prepaid and return receipt requested) to the parties
at the following addresses (or at such other address for a party as shall be
specified by like notice), and shall be deemed given on the date on which
delivered by hand or otherwise on the date of receipt as confirmed:
To Purchaser:
LSI Logic Corporation
0000 XxXxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attn: Vice President and General Counsel
Telephone No.:(000) 000-0000
Facsimile No.:(000) 000-0000
with a copy to:
Xxxxxxx, Phleger & Xxxxxxxx LLP
Two Embarcadero Place
0000 Xxxx Xxxx
Xxxx Xxxx, XX 00000
Attention: Xxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
To the LLC:
Crosby, Heafey, Xxxxx & May
Xxx Xxxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
15. Construction of Agreement. A reference to a Section or Schedule
shall mean a Section in or Schedule to this Agreement unless otherwise expressly
stated. The titles and headings herein are for reference purposes only and shall
not in any manner limit the construction of this Agreement which shall be
considered as a whole. The words "include," "includes" and "including" when used
herein shall be deemed in each case to be followed by the words "without
limitation."
16. Entire Agreement, Assignability, etc. This Agreement, and the
documents and other agreements among the parties hereto and thereto as
contemplated by or referred to herein or therein constitute the entire agreement
among the parties with respect to the subject matter hereof and supersede all
other prior agreements and understandings, both written and oral, between the
parties with respect to the subject matter hereof. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns. This Agreement is not intended to confer upon
any person other than the parties hereto any rights or remedies hereunder,
except as otherwise expressly provided herein and shall not be assignable by
operation of law or otherwise, except as provided in Section 8 hereof.
17. Validity. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, each of which shall remain in full force and
effect.
18. Counterparts. This Agreement may be executed in one or more
counterparts, all of which together shall constitute one and the same Agreement.
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IN WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be executed as an agreement under seal as of the date first written
above.
LSI LOGIC CORPORATION
By: /s/ XXXX X'XXXXXX
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Name: Xxxx X'Xxxxxx
Title: Vice President, Storage Components
XXXXXXXX LLC
By: /s/ XXXXXXXX LLC
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