EXHIBIT 4.8
Siebel Systems, Inc.
5 1/2% Convertible Subordinated Notes due September, 2006
Registration Rights Agreement
September 15, 1999
Xxxxxxx, Xxxxx & Co.,
Banc of America Securities LLC,
Xxxxxx Xxxxxx Partners LLC,
c/o Goldman, Sachs & Co.,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Siebel Systems, Inc., a Delaware corporation (the "Company"), proposes to
issue and sell to you (the "Purchasers") upon the terms set forth in a purchase
agreement dated September, 1999 (the "Purchase Agreement"), between the
Purchasers and the Company, its 5 1/2% Convertible Subordinated Notes due
September, 2006 (the "Securities"). As an inducement to the Purchasers to enter
into the Purchase Agreement and in satisfaction of a condition to the
obligations of the Purchasers thereunder, the Company agrees with the
Purchasers, (i) for the benefit of the Purchasers and (ii) for the benefit of
the Holders (as defined below) from time to time of the Registrable Securities
(as defined below), including the Purchasers, as follows:
1. Definitions. Capitalized terms used herein without definition shall
have the meanings ascribed to them in the Purchase Agreement or the Offering
Circular, each dated September 15, 1999, in respect of the Securities. As used
in this Agreement, the following capitalized defined terms shall have the
following meanings:
"Act" or "Securities Act" means the United States Securities Act of 1933,
as amended.
"Affiliate" of any specified person means any other person which, directly
or indirectly, is in control of, is controlled by, or is under common control
with such specified person. For purposes of this definition, "control" of a
person means the power, direct or indirect, to direct or cause the direction of
the management and policies of such person whether by contract or otherwise; and
the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
A-1
"Closing Date" means the First Time of Delivery as defined in the Purchase
Agreement.
"Commission" means the United States Securities and Exchange Commission.
"Common Stock" means the common stock, par value $0.001 per share, of the
Company, and any securities of the Company or any successor which may be
issuable upon conversion of the Securities pursuant to Article Eleven of the
Indenture.
"DTC" means The Depository Trust Company.
"Effectiveness Period" has the meaning set forth in Section 2(b) hereof.
"Electing Holder" means any Holder of Registrable Securities that has
returned a properly completed and signed Notice and Questionnaire to the Company
in accordance with Section 3(b) hereof.
"Exchange Act" means the United States Securities Exchange Act of 1934, as
amended.
"Holder" means any person that is the record owner of Registrable
Securities (and includes any person that has a beneficial interest in any
Registrable Security in book-entry form).
"Indenture" means the Indenture, dated as of September 15, 1999, between
the Company and Chase Manhattan Bank and Trust Company, National Association, as
Trustee, as amended and supplemented from time to time in accordance with its
terms.
"Managing Underwriters" means the investment banker or investment bankers
and manager or managers that shall administer an underwritten offering, if any,
as set forth in Section 6 hereof.
"Person" means an individual, partnership, corporation, limited liability
company, trust or unincorporated organization, or a government or agency or
political subdivision thereof.
"Prospectus" means the prospectus included in any Shelf Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Act), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Registrable Securities.
"Registrable Security" means any Security and any share of Common Stock
issuable upon conversion or repurchase thereof except any such Security or share
of Common Stock which (i) has been effectively registered under the Securities
Act and sold in a manner contemplated by the Shelf Registration Statement, (ii)
has been transferred in compliance with Rule 144 under the Securities Act (or
any successor provision thereto) or is transferable pursuant to paragraph (k) of
such Rule 144 (or any successor provision thereto) ("Rule 144(k)"), or (iii) has
otherwise been transferred and a new Security or share of Common Stock not
subject to transfer restrictions under the Securities Act has been delivered by
or on behalf of the Company in accordance with Section 3.5(b) of the Indenture.
A-2
"Shelf Registration" means a registration effected pursuant to Section 2
hereof.
"Shelf Registration Statement" means a shelf registration statement of the
Company pursuant to the provisions of Section 2 hereof filed with the Commission
which covers some or all of the Registrable Securities, as applicable, on an
appropriate form under Rule 415 under the Act, or any similar rule that may be
adopted by the Commission, amendments and supplements to such registration
statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material incorporated
by reference therein.
"Underwriter" means any underwriter of Registrable Securities in connection
with an offering thereof under a Shelf Registration Statement.
2. Shelf Registration.
(a) The Company shall, no later than 90 calendar days following the Closing
Date, file with the Commission a Shelf Registration Statement relating to the
offer and sale of the Registrable Securities by the Holders from time to time in
accordance with the methods of distribution elected by such Holders and set
forth in such Shelf Registration Statement and, thereafter, shall use its
reasonable efforts to cause such Shelf Registration Statement to be declared
effective under the Act within 180 calendar days following the Closing Date;
provided, however, that the Company may, upon written notice to all the Holders,
postpone having the Shelf Registration Statement declared effective for a
reasonable period not to exceed 90 days if the Company possesses material non-
public information, the disclosure of which would have a material adverse effect
on the Company and its subsidiaries taken as a whole; provided, further,
however, that no Holder shall be entitled to have the Registrable Securities
held by it covered by such Shelf Registration unless such Holder is an Electing
Holder.
(b) The Company shall use its reasonable efforts:
(i) To keep the Shelf Registration Statement continuously effective
in order to permit the Prospectus forming part thereof to be usable by
Holders until the earliest of (1) the sale of all Registrable Securities
registered under the Shelf Registration Statement; (2) the expiration of
the period referred to in Rule 144(k) with respect to all Registrable
Securities held by Persons that are not Affiliates of the Company; and (3)
two years from the date (the "Effective Date") such Shelf Registration
Statement is declared effective (such period being called the
"Effectiveness Period"); and
(ii) Subject to restrictions on the timing and number of supplements
to the Prospectus provided in Section 3(b)(4), after the Shelf Registration
Statement is declared effective by the Commission, upon the request of an
Electing Holder, to take action
A-3
reasonably necessary to register the sale of any Registrable Securities of
such Electing Holder and to identify such Electing Holder as a selling
securityholder.
The Company shall be deemed not to have used its reasonable efforts to keep the
Shelf Registration Statement effective during the requisite period if the
Company voluntarily takes any action that would result in Holders of Registrable
Securities covered thereby not being able to offer and sell any such Registrable
Securities during that period, unless such action is required by applicable law
and the Company thereafter promptly complies with the requirements of paragraph
3(k) below.
(c) The Company may suspend the use of the Prospectus for a period not to
exceed 45 days in any 90-day period or an aggregate of 90 days in any 12-month
period if the Board of Directors of the Company shall have determined in good
faith that because of valid business reasons (not including avoidance of the
Company's obligations hereunder), including the acquisition or divestiture of
assets, pending corporate developments and similar events, it is in the best
interests of the Company to suspend such use, and prior to suspending such use
the Company provides the Holders with written notice of such suspension, which
notice need not specify the nature of the event giving rise to such suspension.
(d) Without limiting the remedies available to the Electing Holders under
Section 7 hereof, the Company acknowledges that any failure by the Company to
comply with its obligations under Section 2(a) hereof may result in material
irreparable injury to the Purchasers or the Electing 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
Purchasers or any Electing Holder may obtain such relief as may be required to
specifically enforce the Company's obligations under Section 2(a) hereof.
3. Registration Procedures. In connection with any Shelf Registration
Statement, the following provisions shall apply:
(a) The Company shall prepare and file with the Commission the Shelf
Registration Statement on the appropriate form under the Act (x) which form
shall be selected by the Company, (y) which form shall be available for the sale
of the Registrable Securities by the Electing Holders and (z) which Shelf
Registration Statement and any amendment thereto and the Prospectus forming part
thereof and any amendment or supplement thereto (and each other document
incorporated therein by reference in each case) shall comply as to form in all
material respects with the Act and the Exchange Act and the respective rules and
regulations thereunder and shall include (or incorporate by reference) all
financial statements required by the Commission to be filed therewith, and shall
use its reasonable efforts to cause such Shelf Registration Statement to become
effective and remain effective in accordance with Section 2 hereof.
A-4
(b) (1) The Company shall mail the Notice and Questionnaire to the
Holders of Registrable Securities not less than 30 calendar days prior to
the time the Company intends in good faith to have the Shelf Registration
Statement declared effective. Any Person that acquires any Registrable
Securities from an Electing Holder in compliance with the applicable
provisions of the Securities (excluding any Registrable Securities that
were not identified in the Notice and Questionnaire delivered by such
Electing Holder) will be entitled to have such Registrable Securities
included in the Shelf Registration Statement so long as such transferee
provides the Company with an updated Notice and Questionnaire prior to the
Questionnaire Deadline (as defined below). Subject to Section 3(b)(2)
hereof, no Holder of Registrable Securities shall be entitled to be named
as a selling securityholder in the Shelf Registration Statement as of the
Effective Date, and no Holder of Registrable Securities shall be entitled
to use the Prospectus forming a part thereof for offers and resales of
Registrable Securities at any time, unless such Holder has returned a
completed and signed Notice and Questionnaire to the Company by the
deadline for response set forth therein (the "Questionnaire Deadline"),
such response deadline to be on a date not less than 28 calendar days after
the date of mailing of the Notice and Questionnaire by the Company.
(2) If such complete Notice and Questionnaire is received by the
Company 10 days or more before the Effective Date, such Holder shall be
entitled to have its Registrable Securities included in the Shelf
Registration Statement at the Effective Date Following its receipt of such
Notice and Questionnaire, the Company will reasonably promptly include the
Registrable Securities covered thereby in the Shelf Registration Statement
(if not previously included). If the Company receives such complete Notice
and Questionnaire after the 10th day before the Effective Date, the
Registrable Securities covered by the Notice and Questionnaire will,
subject to Section 3(b)(4) be included in the Shelf Registration Statement
after receipt of such Notice and Questionnaire.
(3) After the Effective Date of the Shelf Registration Statement, the
Company shall, upon the request of any Holder of Registrable Securities
that is not then an Electing Holder, as promptly as reasonably practicable,
send a Notice and Questionnaire to such Holder. The Company shall not be
required to take any action to name such Holder as a selling securityholder
in the Shelf Registration Statement until such Holder has returned a
completed and signed Notice and Questionnaire to the Company. In the event
that the Company receives such complete Notice and Questionnaire after the
Shelf Registration Statement has been declared effective, the Company will,
subject to Section 3(b)(4), following receipt of the complete Notice and
Questionnaire, file any amendments to the Shelf Registration Statement or
supplements related to the Prospectus as are necessary to permit such
Holder to deliver the Prospectus to purchasers of the Registrable
Securities. The Company shall use reasonable efforts to cause such post-
effective amendment to the Shelf Registration Statement to be declared
effective within 45 days of the filing of such post-effective amendment.
A-5
(4) Notwithstanding anything to the contrary in this Agreement, the
Company shall be required to prepare and file amendments to the
Registration Statement or supplements to the Prospectus that are necessary
to add Holders and/or Registrable Securities to the Shelf Registration
Statement no more frequently than once within any 90-day period, the timing
of such filings to be within ten days after receipt of the Notice and
Questionnaire.
(c) The Company shall furnish to the Holders, prior to the filing thereof
with the Commission, a copy of any Shelf Registration Statement, and each
amendment thereof and each amendment or supplement, if any, to the Prospectus
included therein and shall use reasonable efforts to reflect in each such
document, when so filed with the Commission, such comments as the Holders
reasonably may propose.
(d) The Company shall take such action as may be necessary so that (i) any
Shelf Registration Statement and any amendment thereto and any Prospectus
forming part thereof and any amendment or supplement thereto (and each report or
other document incorporated therein by reference in each case) complies in all
material respects with the Securities Act and the Exchange Act and the
respective rules and regulations thereunder, (ii) any Shelf Registration
Statement and any amendment thereto does not, when it becomes effective, contain
an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
and (iii) any Prospectus forming part of any Shelf Registration Statement, and
any amendment or supplement to such Prospectus, does not include an untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements, in the light of the circumstances under which they were
made, not misleading.
(e) (i) The Company shall advise the Purchasers, the Electing Holders and
the Managing Underwriter or Underwriters promptly and, if requested by the
Purchasers or any Electing Holder, confirm such advice in writing:
(1) when a Shelf Registration Statement and any amendment
thereto has been filed with the Commission and when the Shelf
Registration Statement or any post-effective amendment thereto has
become effective in each case making a public announcement thereof by
release made to Reuters Economic Services and Bloomberg Business News;
(2) when the Company receives any request by the Commission for
amendments or supplements to the Shelf Registration Statement or the
Prospectus included therein or for additional information;
(3) when the Commission issues any stop order suspending
effectiveness of the Shelf Registration Statement or initiates any
proceedings for that purpose;
A-6
(4) when the Company receives any notification with respect to
the suspension of the qualification of the securities included therein
for sale in any jurisdiction or the initiation of any proceeding for
such purpose; and
(ii) The Company shall, as promptly as reasonably practicable, advise
the Purchasers, the Electing Holders and each Managing Underwriter, if any,
of the happening of any event that requires the making of any changes to
the Shelf Registration Statement or the Prospectus so that, as of such
date, the Shelf Registration Statement and the Prospectus do not contain an
untrue statement of a material fact and do not omit to state a material
fact required to be stated therein or necessary to make the statements
therein (in the case of the Prospectus, in light of the circumstances under
which they were made) not misleading (which advice shall be accompanied by
an instruction to suspend the use of the Prospectus until the requisite
changes have been made).
(f) The Company shall use reasonable efforts to prevent the issuance, and
if issued to obtain the withdrawal, of any order suspending the effectiveness of
any Shelf Registration Statement at the earliest possible time.
(g) The Company shall furnish to each Electing Holder, counsel for the
Purchasers, each Purchaser and each Managing Underwriter, if any, with respect
to a Shelf Registration Statement, without charge, at least one copy of such
Shelf Registration Statement and any post-effective amendment thereto, including
financial statements and schedules, and, if the Electing Holder so requests in
writing, all exhibits (including those incorporated by reference).
(h) The Company shall, during the Effectiveness Period, deliver to each
Electing Holder and each Managing Underwriter, if any, with respect to a Shelf
Registration Statement, without charge, as many copies of the Prospectus
(including each preliminary Prospectus) included in such Shelf Registration
Statement and any amendment or supplement thereto as such Electing Holder may
reasonably request; and the Company consents (except during the continuance of
any event described in Section 3(e)(ii)) to the use of the Prospectus or any
amendment or supplement thereto by each of the Electing Holders in connection
with the offering and sale of the Registrable Securities covered by the
Prospectus and any amendment or supplement thereto during the Effectiveness
Period.
(i) Prior to any offering of Registrable Securities pursuant to any Shelf
Registration Statement, the Company shall register or qualify or cooperate with
the Purchasers and their counsel in connection with the registration or
qualification of such Registrable Securities for offer and sale under the
securities or blue sky laws of such jurisdictions as any such Electing Holders
reasonably request in writing and do any and all other acts or things necessary
or advisable to enable the offer and sale in such jurisdictions of the
Registrable Securities covered by such Shelf Registration Statement; provided,
however, that in no event shall the Company be obligated to (i) qualify as a
foreign corporation or as a dealer in securities in any jurisdiction where it
would not otherwise be required to so qualify but for this Section 3(i), (ii)
file any general consent to service of process or
A-7
taxation in any jurisdiction where it is not as of the date hereof then so
subject or (iii) subject itself to taxation in any jurisdiction if it is not so
subject.
(j) Unless any Registrable Securities shall be in book-entry only form,
the Company shall cooperate with the Electing Holders to facilitate the timely
preparation and delivery of certificates representing Registrable Securities to
be sold pursuant to any Shelf Registration Statement free of any restrictive
legends and in such permitted denominations and registered in such names as
Electing Holders may request in connection with the sale of Registrable
Securities pursuant to such Shelf Registration Statement.
(k) Upon the occurrence of any event contemplated by paragraph 3(e)(ii)
above, the Company shall promptly prepare a post-effective amendment to any
Shelf Registration Statement or an amendment or supplement to the related
Prospectus or file any other required document so that, as thereafter delivered
to purchasers of the Registrable Securities included therein, the Prospectus
will not include an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading. If the Company
notifies the Electing Holders of the occurrence of any event contemplated by
paragraph 3(e)(ii) above, the Electing Holders shall suspend the use of the
Prospectus until the requisite changes to the Prospectus have been made.
(l) Not later than the effective date of any Shelf Registration Statement
hereunder, the Company shall provide a CUSIP number for the Securities
registered under such Shelf Registration Statement.
(m) The Company shall use reasonable efforts to comply with all applicable
rules and regulations of the Commission and shall make generally available to
their security holders or otherwise provide in accordance with Section 11(a) of
the Securities Act as soon as practicable after the effective date of the
applicable Shelf Registration Statement an earnings statement satisfying the
provisions of Section 11(a) of the Securities Act.
(n) The Company shall cause the Indenture and the Securities to be
qualified under the Trust Indenture Act in a timely manner; and in connection
with such qualification, the Company shall cooperate with the Trustee under the
Indenture and the Holders (as defined in the Indenture) to effect such changes
to the Indenture as may be required for such Indenture to be so qualified in
accordance with the terms of the Trust Indenture Act; and the Company shall
execute and use all reasonable efforts to cause the Trustee to execute, all
documents that may be required to effect such changes and all other forms and
documents required to be filed with the Commission to enable such Indenture to
be so qualified in a timely manner.
(o) In the event of an underwritten offering as set forth in Section 6
herein, the Company shall, if requested, promptly include or incorporate in a
Prospectus supplement or post-effective amendment to a Shelf Registration
Statement, such information as the Managing Underwriter or Underwriters
reasonably request to be included therein and to which the Company does not
A-8
reasonably object and shall make all required filings of such Prospectus
supplement or post-effective amendment as soon as practicable after it is
notified of the matters to be included or incorporated in such Prospectus
supplement or post-effective amendment.
(p) The Company shall enter into such customary agreements (including
underwriting agreements in customary form) to take all other appropriate actions
in order to expedite or facilitate the registration or the disposition of the
Registrable Securities, and in connection therewith, if an underwriting
agreement is entered into, cause the same to contain indemnification provisions
and procedures substantially identical to those set forth in Section 5 (or such
other provisions and procedures acceptable to the Managing Underwriters, if any)
with respect to all parties to be indemnified pursuant to Section 5.
(q) The Company shall:
(i) make reasonably available for inspection by one or more
representative of the Electing Holders designated in writing by the Holders
of a majority of the Registrable Securities to be registered thereunder,
any Underwriter participating in any disposition pursuant to such Shelf
Registration Statement, and any attorney, accountant or other agent
retained by such representative or any such Underwriter all relevant
financial and other records, pertinent corporate documents and properties
of the Company and its subsidiaries;
(ii) cause the Company's officers, directors and employees to make
reasonably available for inspection all relevant information reasonably
requested by such representative or any such Underwriter, attorney,
accountant or agent in connection with any such Shelf Registration
Statement, in each case, as is customary for similar due diligence
examinations; provided, however, that any information that is designated in
writing by the Company, in good faith, as confidential at the time of
delivery of such information shall be kept confidential by such
representative, any Holders or any such Underwriter, attorney, accountant
or agent, unless such disclosure is made in connection with a court
proceeding or required by law, or such information becomes available to the
public generally or through a third party without an accompanying
obligation of confidentiality;
(iii) make such representations and warranties to the Electing
Holders and the Underwriters, if any, in form, substance and scope as are
customarily made by the Company to underwriters in primary underwritten
offerings and covering matters including, but not limited to, those set
forth in the Purchase Agreement;
(iv) use its reasonable efforts to obtain opinions of counsel to the
Company and updates thereof (which counsel and opinions (in form, scope and
substance) shall be reasonably satisfactory to the Managing Underwriters,
if any) addressed to each Electing Holder and the Underwriters, if any,
covering such matters as are customarily covered in opinions requested in
underwritten offerings and such other matters as may be reasonably
requested by such Electing Holders and Underwriters (it being agreed that
the matters to be covered by such opinion or written statement by such
counsel delivered in connection with
A-9
such opinions shall include in customary form, without limitation, as of
the date of the opinion and as of the effective date of the Shelf
Registration Statement or most recent post-effective amendment thereto, as
the case may be, the absence from such Shelf Registration Statement and the
prospectus included therein, as then amended or supplemented, including the
documents incorporated by reference therein, of an untrue statement of a
material fact or the omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading);
(v) use its reasonable efforts to obtain "cold comfort" letters and
updates thereof from the independent public accountants of the Company
(and, if necessary, any other independent public accountants of any
subsidiary of the Company or of any business acquired by the Company for
which financial statements and financial data are, or are required to be,
included in the Shelf Registration Statement), addressed to each Electing
Holder and the Underwriters, if any, in customary form and covering matters
of the type customarily covered in "cold comfort" letters in connection
with primary underwritten offerings;
(vi) deliver such documents and certificates as may be reasonably
requested by any such Electing Holders and the Managing Underwriters, if
any, including those to evidence compliance with Section 3(d) and with any
customary conditions contained in the underwriting agreement or other
agreement entered into by the Company.
The foregoing actions set forth in clauses (iii), (iv), (v) and (vi) of
this Section 3(p) shall be performed at each closing under any underwritten
offering to the extent required thereunder (including at any closing
relating to the exercise by underwriters of their over-allotment options,
if any).
(r) The Company will use its reasonable efforts to cause the Stock
issuable upon conversion of the Securities to be admitted for quotation on the
Nasdaq National Market or other stock exchange or trading system on which the
Stock primarily trades on or prior to the effective date of any Shelf
Registration Statement hereunder.
(s) In the event that any broker-dealer registered under the Exchange Act
shall be an "Affiliate" (as defined in Rule 2720(b)(i) of the Rules of Conduct
of the National Association of Securities Dealers, Inc. (the "NASD") (or any
successor or analogous provision thereto)) of the Company or has a "Conflict of
Interest" (as defined in Rule 2720(b)(7) of the Rules of Conduct of the NASD (or
any successor an analogous provision thereto)) and such broker-dealer shall
underwrite, participate as a member of an underwriting syndicate or selling
group or "assist in the distribution" (within the meaning of such rule) of any
Registrable Securities, whether as a holder of such Registrable Securities or as
an underwriter, a placement or sales agent or a broker or dealer in respect
thereof, or otherwise, assist such broker-dealer (at the expense of such broker-
dealer) in complying with the requirements of such rule, including, without
limitation, by (A) engaging a "qualified independent underwriter" (as defined in
such rule) to participate in the preparation of the
A-10
registration statement relating to such Registrable Securities, to exercise
usual standards of due diligence in respect thereto and to recommend the public
offering price of such Registrable Securities, (B) indemnifying such qualified
independent underwriter to the extent of the indemnification of Underwriters
provided in Section 5 hereof, and (C) providing such information to such broker-
dealer as may be required in order for such broker-dealer to comply with the
requirements of the Rules of Conduct of the NASD.
(t) The Company shall use reasonable efforts to take all other steps
necessary to effect the registration, offering and sale of the Registrable
Securities covered by the Shelf Registration Statement contemplated hereby.
(u) The Company may require each Electing Holder with respect to a Shelf
Registration Statement to furnish to the Company such information regarding the
Electing Holder and the distribution of Registrable Securities held by such
Electing Holder as may be required by applicable law or regulation for inclusion
in such Shelf Registration Statement and the Company may exclude from such
registration the Registrable Securities of any Electing Holder that fails to
furnish such information within a reasonable time after receiving such request.
4. Registration Expenses. Except as otherwise provided in Section 3 or
Section 6, the Company shall bear all fees and expenses incurred in connection
with the performance of its obligations under Sections 2 and 3 hereof and shall
bear or reimburse the Electing Holders for the reasonable fees and disbursements
of a single counsel selected by a plurality of all Electing Holders who own an
aggregate of not less than 25% of the Registrable Securities covered by the
Shelf Registration Statement to act as counsel therefor in connection therewith.
Each Electing Holder shall pay all underwriting discounts and commissions and
transfer taxes, if any, relating to the sale or disposition of such Electing
Holder's Registrable Securities pursuant to the Shelf Registration Statement.
5. Indemnification and Contribution.
(a) In connection with any Shelf Registration Statement, the Company shall
indemnify and hold harmless each Electing Holder, each Underwriter who
participates in an offering of Registrable Securities, each person, if any, who
controls any of such parties within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act and each of their respective directors,
officers, employees, trustees and agents, as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, including any amounts paid in settlement of any investigation,
litigation, proceeding or claim, joint or several, as incurred, arising out
of any untrue statement or alleged untrue statement of a material fact
contained in any Shelf Registration Statement (or any amendment thereto)
covering Registrable Securities, including all documents incorporated
therein by reference, or the omission or alleged omission therefrom of a
material fact required to be stated therein
A-11
or necessary to make the statements therein not misleading or arising out
of any untrue statement or alleged untrue statement of a material fact
contained in any Prospectus (or any amendment or supplement thereto) or the
omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, that the Company
shall not be liable under this clause (i) for any settlement of any action
effected without its written consent, which consent shall not be
unreasonably withheld; and
(ii) against any and all expenses whatsoever, as incurred (including
reasonable fees and disbursements of counsel chosen by the Electing
Holders, such Electing Holder or any Underwriter (except to the extent
otherwise expressly provided in Section 5(c) hereof)), reasonably incurred
in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any court or governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission, to
the extent that any such expense is not paid under subparagraph (i) of this
Section 5(a);
provided that this indemnity shall not apply to any loss, liability, claim,
damage or expense to the extent arising out of an untrue statement or omission
or alleged untrue statement or omission made in reliance upon and in conformity
with written information furnished to the Company by such Electing Holder or any
Underwriter in writing expressly for use in the Shelf Registration Statement (or
any amendment thereto) or any Prospectus (or any amendment or supplement
thereto). Any amounts advanced by the Company to an indemnified party pursuant
to this Section 5 as a result of such losses shall be returned to the Company if
it shall be finally determined by such a court in a judgment not subject to
appeal or final review that such indemnified party was not entitled to
indemnification by the Company.
(b) Each Electing Holder shall agree, severally and not jointly, to
indemnify and hold harmless the Company, each Underwriter who participates in an
offering of Registrable Securities and the other Electing Holders and each of
their respective directors, officers (including each officer of the Company who
signed the Shelf Registration Statement), employees, trustees and agents and
each Person, if any, who controls the Company, any Underwriter or any other
Electing Holder within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, from and against any and all loss, liability,
claim, damage and expense whatsoever described in the indemnity contained in
Section 5(a)(i) and (ii) hereof, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Shelf Registration Statement (or any amendment thereto) or any Prospectus (or
any amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by such Electing Holder expressly
for use in the Shelf Registration Statement (or any amendment thereto) or any
Prospectus (or any amendment or supplement thereto); provided, however, that, no
such Electing Holder shall be liable for any claims hereunder in excess of the
amount of net proceeds received by such Electing Holder from the sale of
Registrable Securities pursuant to the Shelf Registration Statement.
A-12
(c) Each indemnified party shall give prompt notice to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder, enclosing a copy of all papers served on such indemnified
party, but failure to so notify an indemnifying party shall not relieve it of
any liability which it may have to the indemnified party otherwise than on
account of this indemnity agreement. An indemnifying party may participate at
its own expense in the defense of any such action. If an indemnifying party so
elects within a reasonable time after receipt of such notice, such indemnifying
party, jointly with any other indemnifying party, may assume the defense of such
action with counsel chosen by it and approved by the indemnified party or
parties defendant in such action, provided that if any such indemnified party
reasonably determines that there may be legal defenses available to such
indemnified party which are different from or in addition to those available to
such indemnifying party or that representation of such indemnifying party and
any indemnified party by the same counsel would present a conflict of interest,
then such indemnifying party or parties shall not be entitled to assume such
defense. If an indemnifying party is not entitled to assume the defense of such
action as a result of the proviso to the preceding sentence, counsel for such
indemnifying party shall be entitled to conduct the defense of such indemnifying
party and counsel for each indemnified party or parties shall be entitled to
conduct the defense of such indemnified party or parties. If an indemnifying
party assumes the defense of an action in accordance with and as permitted by
the provisions of this paragraph, such indemnifying party shall not be liable
for any fees and expenses of counsel for the indemnified parties incurred
thereafter in connection with such action. In no event shall the indemnifying
party or parties be liable for the fees and expenses of more than one counsel
(in addition to any local counsel) separate from its own counsel for all
indemnified parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnity provision provided for in this Section 5 is
for any reason held to be unavailable to an indemnified party although
applicable in accordance with its terms, then each indemnifying party shall
contribute to the aggregate losses, liabilities, claims, damages and expenses of
the nature contemplated by such indemnity agreement incurred by such indemnified
party, as incurred; provided that no Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person that was not guilty of such
fraudulent misrepresentation. Each such indemnifying party shall contribute to
such aggregate losses, liabilities, claims, damages and expenses of such
indemnified party of the nature contemplated by such indemnity agreement in such
proportion as shall be appropriate to reflect the relative fault of such
indemnifying party, on the one hand, and such indemnified party, on the other
hand, with respect to the statements or omissions which resulted in such loss,
liability, claim, damage or expense, or action in respect thereof, as well as
any other relevant equitable considerations. The relative fault of an
indemnifying party, on the one hand, and of an indemnified party, on the other
hand, shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by such
indemnifying party, on the one hand, or by or
A-13
on behalf of such indemnified party, on the other, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company, the Purchasers and the Holders of the
Registrable Securities agree that it would not be just and equitable if
contribution pursuant to this Section 5(d) were to be determined by pro rata
allocation or by any other method of allocation that does not take into account
the relevant equitable considerations. For purposes of this Section 5(d), each
director, officer, employee, trustee, agent and Person, if any, who controls a
Purchaser or Holder within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act shall have the same rights to contribution as
such Purchaser or Holder, as the case may be, and each director, officer,
employee, trustee and agent of the Company, and each Person, if any, who
controls the Company within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act shall have the same rights to contribution as the
Company. No party shall be liable for contribution with respect to any action,
suit, proceeding or claim settled without its written consent, which consent
shall not be unreasonably withheld.
(e) The Company may require, as a condition to including any Registrable
Securities in any Registration Statement filed and to entering into any
underwriting agreement with respect thereto, that the Company shall have
received an undertaking reasonably satisfactory to it from the holder of such
Registrable Securities and from each Underwriter named in any such underwriting
agreement, severally and not jointly, to comply with the provisions of
paragraphs (a) through (d) of this Section 5.
The indemnity and contribution provisions contained in this Section 5 shall
remain operative and in full force and effect regardless of (i) any termination
of this Agreement, (ii) any investigation made by or on behalf of the Managing
Underwriters, if any, any Electing Holder or any Person controlling any Electing
Holder, or by or on behalf of the Company, its officers or directors or any
Person controlling the Company and (iii) any sale of Registrable Securities
pursuant to the Shelf Registration Statement.
6. Underwritten Offering. The Electing Holders who desire to do so may
sell Registrable Securities in an underwritten offering upon request to the
Company. In any such underwritten offering, the investment banker or bankers
and manager or managers that will administer the offering will be selected by,
and the underwriting arrangements with respect thereto will be approved by the
Holders of a majority of the Registrable Securities to be included in such
offering; provided, however, that (i) such investment bankers and managers and
underwriting arrangements must be reasonably satisfactory to the Company and
(ii) the Company shall not be obligated to arrange for more than one
underwritten offering during the Effectiveness Period. No Holder may
participate in any underwritten offering contemplated hereby unless such Holder
(a) agrees to sell such Holder's Registrable Securities in accordance with any
approved underwriting arrangements, (b) completes and executes all reasonable
questionnaires, powers of attorney, indemnities, underwriting agreements, lock-
up letters and other documents required under the terms of such approved
underwriting arrangements and (c) at least 20% of the outstanding Registrable
A-14
Securities are included in such underwritten offering. The Holders
participating in any underwritten offering shall be responsible for any expenses
customarily borne by selling securityholders, including underwriting discounts
and commissions and fees and expenses of counsel to the selling securityholders
and shall reimburse the Company for the fees and disbursements of their counsel,
their independent public accountants and any printing expenses incurred in
connection with such underwritten offerings. Notwithstanding the foregoing or
the provisions of Section 3(o) hereof, upon receipt of a request from the
Managing Underwriter or a representative of Holders of a majority of the
Registrable Securities outstanding to prepare and file an amendment or
supplement to the Shelf Registration Statement and Prospectus in connection with
an underwritten offering, the Company may delay the filing of any such amendment
or supplement for up to 90 days if the Company in good faith has a valid
business reason for such delay.
7. Liquidated Damages
(a) Pursuant to Section 2(a) hereof, the Company may, upon written notice
to all the Holders, postpone having the Shelf Registration Statement declared
effective for a reasonable period not to exceed 90 days if the Company possesses
material non-public information, the disclosure of which would have a material
adverse effect on the Company and its subsidiaries taken as a whole.
Notwithstanding any such postponement, if (i) on or prior to the 90th day
following the Closing Date, a Shelf Registration Statement has not been filed
with the Commission or (ii) on or prior to the 180th day following the Closing
Date, such Shelf Registration Statement is not declared effective by the
Commission (each, a "Registration Default"), the Company shall be required to
pay liquidated damages ("Liquidated Damages"), from and including the day
following such Registration Default until such Shelf Registration Statement is
either so filed or so filed and subsequently declared effective, as applicable,
or, if earlier, the end of the Effectiveness Period at a rate per annum equal to
an additional one-quarter of one percent (0.25%) of the principal amount of
Registrable Securities, to and including the 90th day following such
Registration Default and one-half of one percent (0.5%) thereof from and after
the 91st day following such Registration Default.
(b) In the event that the Shelf Registration Statement ceases to be
effective (or the Holders of Registrable Securities are otherwise prevented or
restricted by the Company from effecting sales pursuant thereto) (an "Effective
Failure") for more than 45 days, whether or not consecutive, in any 90-day
period, or 90 days, whether or not consecutive, during any 12-month period, then
the Company shall pay Liquidated Damages at a rate per annum equal to an
additional one-half of one percent (0.5%) from the 46th day of the applicable
90-day period or the 91st day of the applicable 12-month period, as the case may
be, that such Shelf Registration Statement ceases to be effective (or the
Holders of Registrable Securities are otherwise prevented or restricted by the
Company from effecting sales pursuant thereto) until the earlier of (i) the time
the Shelf Registration Statement again becomes effective or the Holders of
Registrable Securities are again able to make sales under the Shelf Registration
Statement or (2) the time the Effectiveness Period expires. For the purpose of
determining an Effective Failure, days on which the Company has been obligated
A-15
to pay Liquidated Damages in accordance with the foregoing in respect of a prior
Effective Failure within the applicable 90-day or 12-month period, as the case
may be, shall not be included.
(c) In the event the Company fails to file a post-effective amendment to
the Shelf Registration Statement, or the post-effective amendment is not
declared effective, within the periods required by Section 3(b)(4), the Company
shall pay Liquidated Damages at a rate per annum equal to an additional one-half
of one percent (0.5%) from and including the date of such Registration Default
until such time as such Registration Default is cured.
(d) Any amounts to be paid as Liquidated Damages pursuant to paragraphs
(a) or (b) of this Section shall be paid semi-annually in arrears, with the
first semi-annual payment due on the first Interest Payment Date (as defined in
the Indenture), as applicable, following the date of such Registration Default.
Such Liquidated Damages will accrue (1) in respect of the Securities at the
rates set forth in paragraphs (a) or (b) of this Section, as applicable, on the
principal amount of the Securities and (2) in respect of the Common Stock issued
upon conversion of the Securities, at the rates set forth in paragraphs (a) or
(b) of this Section, as applicable, applied to the Conversion Price (as defined
in the Indenture) at that time.
(e) Except as provided in Section 2(d), the Liquidated Damages as set
forth in this Section 7 shall be the exclusive monetary remedy available to the
Holders of Registrable Securities for such Registration Default or Effective
Failure. In no event shall the Company be required to pay Liquidated Damages in
excess of the applicable maximum amount of one-half of one percent (0.5%) set
forth above, regardless of whether one or multiple Registration Defaults exist.
8. Miscellaneous.
(a) Other Registration Rights. The Company may have granted and may in the
future grant registration rights that would permit any Person that is a third
party the right to piggy-back on any Shelf Registration Statement, provided that
if the Managing Underwriter, if any, of such offering notifies the Electing
Holders that the total amount of securities which they and the holders of such
piggy-back rights intend to include in any Shelf Registration Statement is so
large as to materially adversely affect the success of such offering (including
the price at which such securities can be sold), then only the amount, the
number or kind of securities to be offered for the account of holders of such
piggy-back rights will be reduced to the extent necessary to reduce the total
amount of securities to be included in such offering to the amount, number or
kind recommended by the Managing Underwriter prior to any reduction in the
amount of Registrable Securities to be included.
(b) Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, qualified, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company has obtained the written consent of
Xxxxxxx, Xxxxx & Co.
A-16
(c) No Inconsistent Agreements. Except for agreements listed in Schedule 1
hereto, the applicable provisions of which have been waived, the Company has not
entered into, and on or after the date of this Agreement will not enter into,
any agreement which is inconsistent with the rights granted to the Holders of
Registrable Securities in this Agreement or otherwise conflicts with the
provisions hereof. The rights granted to the Holders hereunder do not in any way
conflict with and are not inconsistent with the rights granted to the holders of
the Company's other issued and outstanding securities under any such agreements.
(d) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telex, telecopier, or air courier guaranteeing overnight delivery:
(1) if to a Holder, at the most current address given by such Holder
to the Company in accordance with the provisions of this Section 8(d);
(2) if to the Purchasers, initially at the address set forth in the
Purchase Agreement; and
(3) if to the Company, initially at its address set forth in the
Purchase Agreement.
All such notices and communications shall be deemed to have been duly given when
received.
The Purchasers or the Company by notice to the other may designate
additional or different addresses for subsequent notices or communications.
(e) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties and the
Holders, including, without the need for an express assignment or any consent by
the Company thereto, subsequent Holders of Registrable Securities. The Company
hereby agrees to extend the benefits of this Agreement to any Holder of
Registrable Securities and any such Holder may specifically enforce the
provisions of this Agreement as if an original party hereto.
(f) 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.
(g) Headings. The headings in this agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. This agreement shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to any
provisions relating to conflicts of laws.
A-17
(i) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired or affected
thereby, it being intended that all of the rights and privileges of the parties
hereto shall be enforceable to the fullest extent permitted by law.
A-18
Please confirm that the foregoing correctly sets forth the agreement
between the Company and you.
Very truly yours,
SIEBEL SYSTEMS, INC.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer and
Senior Vice President, Finance
and Administration
The foregoing Registration Rights Agreement is hereby confirmed and accepted as
of the date first above written.
XXXXXXX, SACHS & CO.
BANC OF AMERICA SECURITIES LLC,
XXXXXX XXXXXX PARTNERS LLC,
By: /s/ Xxxxxxx, Sachs & Co.
---------------------------
(Xxxxxxx, Xxxxx & Co.)
A-19
SIEBEL SYSTEMS, INC.
INSTRUCTION TO DTC PARTICIPANTS
-------------------------------
(Date of Mailing)
URGENT - IMMEDIATE ATTENTION REQUESTED
DEADLINE FOR RESPONSE: [DATE]
------------------------------
The Depository Trust Company ("DTC") has identified you as a DTC
Participant through which beneficial interests in the Siebel Systems, Inc. (the
"Company") 5 1/2% Convertible Subordinated Notes due September, 2006 (the
"Notes") are held. The Notes are identified by CUSIP No. 826170 AA 0.
In accordance with the terms of the Registration Rights Agreement,
dated as of September 15, 1999, between the Company and the Purchasers named
therein (the "Registration Rights Agreement"), the Company is in the process of
registering the Notes and the shares of common stock, par value $0.001 per share
(together, the "Securities"), issuable upon conversion thereof, under the
Securities Act of 1933, as amended, for resale by the beneficial owners thereof.
In order to have their Securities included in the registration statement, the
beneficial owners, INCLUDING BENEFICIAL OWNERS RESIDENT OUTSIDE THE UNITED
STATES, must complete and return the enclosed Notice of Registration Statement
and Selling Securityholder Questionnaire (the "Notice and Questionnaire").
It is important that beneficial owners of the Securities receive a
------------------------------------------------------------------
copy of the enclosed materials as soon as possible as their rights to have the
--------------------------------------------------
Securities included in the registration statement depend upon their returning
the Notice and Questionnaire by [DEADLINE FOR RESPONSE]. Please forward a copy
---------------------
of the enclosed documents to each beneficial owner that holds interests in the
Securities through you. If you require more copies of the enclosed materials or
have any questions pertaining to this matter, please contact:
Siebel Systems, Inc.
0000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Attention: Director, Legal Affairs
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
A-20
Siebel Systems Inc.
Notice of Registration Statement
and
Selling Securityholder Questionnaire
(Date)
Siebel Systems, Inc. (the "Company") has filed or intends shortly to file with
the United States Securities and Exchange Commission (the "Commission") a
preliminary registration statement on Form S-3 (the "Shelf Registration
Statement") for the registration and resale under the United States Securities
Act of 1933, as amended (the "Securities Act"), of the Company's 5 1/2%
Convertible Subordinated Notes due September, 2006 (CUSIP No. 000000 XX 0) (the
"Notes"), and Common Stock issuable upon conversion thereof, in accordance with
the terms of the Registration Rights Agreement, dated as of September 15, 1999
(the "Registration Rights Agreement"), between the Company and the purchasers
named therein (the "Purchasers"). A copy of the Registration Rights Agreement
has been sent to each of the Purchasers. All capitalized terms not otherwise
defined herein shall have the meanings ascribed thereto in the Registration
Rights Agreement.
In order to have Registrable Securities included in the Shelf Registration
Statement (or a supplement or amendment thereto), this Notice of Registration
Statement and Selling Securityholder Questionnaire ("Notice and Questionnaire")
must be completed, executed and delivered to the Company at the address set
forth herein for receipt ON OR BEFORE [insert date that is 28 days from the
Notice date] (the "Questionnaire Deadline"). Unless the Company otherwise
consents, beneficial owners of the Registrable Securities who do not complete,
execute and return this Notice and Questionnaire by such date (i) will not be
named as selling securityholders in the Shelf Registration Statement (or a
supplement or amendment thereto) and related Prospectus and (ii) may not sell
their Registrable Securities pursuant thereto. Beneficial owners of Registrable
Securities who have not returned a Notice and Questionnaire by the Questionnaire
Deadline may, however, receive another Notice and Questionnaire from the Company
upon request. Following its receipt of a completed and signed Notice and
Questionnaire, the Company will include the Registrable Securities covered
thereby in the Shelf Registration Statement subject to restrictions on the
timing and number of supplements to the Shelf Registration Statement provided in
the Registration Rights Agreement.
Certain legal consequences arise from being named as a selling securityholder
in the Shelf Registration Statement and related Prospectus. Accordingly,
holders and beneficial owners of Registrable Securities are advised to consult
their own securities law counsel regarding the consequences of being named or
not being named as a selling securityholder in the Shelf Registration Statement
and related Prospectus.
The term "Registrable Securities" is defined in the Registration Rights
Agreement to mean all or any portion of the Notes issued under the Trust
Indenture and the Common Stock issuable upon
-21
conversion of such Notes, provided, however, that a security ceases to be a
Registrable Security when it is no longer a Restricted Security.
The term "Restricted Security" means any Note or Common Stock issuable upon
conversion thereof except any such Note or Common Stock which (i) has been
registered pursuant to an effective registration statement under the Securities
Act and sold in a manner contemplated by the Shelf Registration Statement, (ii)
has been transferred in compliance with Rule 144 under the Securities Act (or
any successor provision thereto) or is transferable pursuant to paragraph (k) of
Rule 144 (or any successor provision thereto) or (iii) has otherwise been
transferred and a new Note or share of Common Stock not subject to transfer
restrictions under the Securities Act has been delivered by or on behalf of the
Company in accordance with the Indenture.
ELECTION
The undersigned holder (the "Selling Securityholder") of Registrable
Securities hereby elects to include in the Shelf Registration Statement the
Registrable Securities beneficially owned by it and listed below in Item (3)
(unless otherwise specified under Item 3). The undersigned, by signing and
returning this Notice and Questionnaire, agrees to be bound with respect to such
Registrable Securities by the terms and conditions of this Notice and
Questionnaire and the Registration Rights Agreement, including, without
limitation, Section 5 of the Registration Rights Agreement, as if the
undersigned Selling Securityholder were an original party thereto.
Upon any sale of Registrable Securities pursuant to the Shelf Registration
Statement, the Selling Securityholder will be required to deliver to the Company
and the Trustee the Notice of Transfer (completed and signed) set forth in
Exhibit 1 attached to this Notice and Questionnaire and hereby undertakes to do
so.
The Selling Securityholder hereby provides the following information to the
Company and represents and warrants that such information is accurate and
complete:
-22
QUESTIONNAIRE
(1) (a) Full Legal Name of Selling Securityholder:
________________________________________________________________________
(b) Full Legal Name of Registered Holder (if not the same as in (a) above)
of Registrable Securities Listed in (3) Below:
________________________________________________________________________
(c) Full Legal Name of DTC Participant (if applicable and if not the same as
(b) above) Through Which Registrable Securities Listed in (3) Below are
Held:
________________________________________________________________________
(2) Address for Notices to Selling Securityholder:
____________________________________________________________________________
____________________________________________________________________________
___________________________________________________________________________
Telephone: _________________________________________________________________
Fax: _______________________________________________________________________
Contact: ___________________________________________________________________
(3) Beneficial Ownership of Registrable Securities:
Except as set forth below, the undesigned Selling Securityholder does not
beneficially own any Notes or Common Stock previously issued upon
conversion, repurchase or redemption of any Note.
Principal amount of Notes beneficially owned: ______________________________
Number of shares of Common Stock beneficially owned and issued to date upon
conversion, repurchase or redemption of Notes (if any): ____________________
Principal amount of Notes which the undersigned wishes to be included in the
Shelf Registration Statement: ______________________________________________
-23
Number of shares of Common Stock (if any) issued upon conversion, repurchase
or redemption of Registrable Securities which are to be included in the
Shelf Registration Statement:
____________________________________________________________________________
(4) Other shares of Common Stock or other Notes of the Company owned by the
Selling Securityholder:
Except as set forth below, and under item (3) above, the undersigned Selling
Securityholder is not the beneficial or registered owner of any shares of
Common Stock or any other securities of the Company.
State any exceptions here:
(5) Relationships with the Company:
Except as set forth below, neither the Selling Securityholder nor any of its
affiliates, officers, director or principal equity holders (5% or more) has
held any position or office or has had any other material relationship with
the Company (or its predecessors or affiliates) during the past three years.
State any exceptions here:
(6) Plan of Distribution:
Except as set forth below, the undersigned Selling Securityholder intends to
distribute the Registrable Securities listed above in Item (3) only as
follows (if at all): Such Registrable Securities may be sold from time to
time directly by the undersigned Selling Securityholder or, alternatively,
through underwriters, broker-dealers or agents. Such Registrable Securities
may be sold in one or more transactions at fixed prices, at prevailing
market prices at the time of sale, at varying prices determined at the time
of sale, or at negotiated prices. Such sales may be effected in transactions
(which may involve crosses or block transactions) (i) on any national
securities exchanges or U.S. inter-dealer quotation system of a registered
national securities association on which the Registrable Securities may be
listed or quoted at the time of sale, (ii) in the over-the-counter market,
(iii) in transactions otherwise than on such exchanges or services or in the
over-the-counter market, or (iv) through the writing of options. In
connection with sales of the Registrable Securities or otherwise, the
Selling Securityholder may enter into hedging transactions with broker-
dealers, which may in turn engage in short sales of the Registrable
Securities in the course of hedging the positions they assume. The Selling
Securityholders may also sell Registrable Securities short and deliver
Registrable Securities to close out such short
-24
positions, or loan or pledge Registrable Securities to broker-dealers that
in turn may sell such securities.
State any exceptions here:
Note: In no event may such method(s) of distribution take the form of an
underwritten offering of the Registrable Securities without the prior agreement
of the Company.
By signing below, the Selling Securityholder acknowledges that it
understands its obligation to comply, and agrees that it will comply, with the
prospectus delivery and other provisions of the Securities Act and Exchange Act
and the respective rules and regulations thereunder, particularly Regulation M.
In the event that the Selling Securityholder transfers all or any portion
of the Registrable Securities listed in Item (3) above after the date on which
such information is provided to the Company, the Selling Securityholder agrees
to notify the transferee(s) at the time of the transfer of its rights and
obligations under this Notice and Questionnaire and the Registration Rights
Agreement.
-25
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
related Prospectus. The Selling Securityholder understands that such
information will be relied upon by the Company in connection with the
preparation of the Shelf Registration Statement and 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 which may occur subsequent to the
date hereof at any time while the Shelf Registration Statement remains in
effect. All notices hereunder and pursuant to the Registration Rights Agreement
shall be made in writing by hand delivery, first-class mail, or air courier
guaranteeing overnight delivery as follows:
To the Company:
Siebel Systems, Inc.
0000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000-0000
Attention: Director, Legal Affairs
Once this Notice and Questionnaire is executed by the Selling
Securityholder and received by the Company, the terms of this Notice and
Questionnaire, and the representations and warranties contained herein, shall be
binding on, shall inure to the benefit of and shall be enforceable by the
respective successors, heirs, personal representatives, and assigns of the
Company and the Selling Securityholder with respect to the Registrable
Securities beneficially owned by such Selling Securityholder and listed in Item
(3) above. This Agreement shall be governed in all respects by the laws of the
State of New York.
IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused
this Notice and Questionnaire to be executed and delivered either in person or
by its duly authorized agent.
Dated: ____________________________________________
Selling Securityholder
(Print/type full legal name of beneficial
owner of Registrable Securities)
By:
Name:
Title:
-26
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR
RECEIPT ON OR BEFORE [DEADLINE FOR RESPONSE] TO THE COMPANY AT:
Siebel Systems, Inc.
0000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000-0000
Attention: Director, Legal Affairs
-27
EXHIBIT 1
NOTICE TO TRANSFER PURSUANT TO REGISTRATION STATEMENT
[Trustee]
[Trustee's Address]
Siebel Systems, Inc.
0000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000-0000
Attention: Director, Legal Affairs
Re: 5 1/2% Convertible Subordinated Notes
due September, 2006 (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, repurchase or redemption of Notes,
pursuant to the Registration Statement 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 Common Stock transferred are [a portion of] the Notes or
Common Stock listed in such Prospectus as amended or supplemented opposite such
owner's name.
Dated: _______________________________ Very truly yours,
_________________________________________
(Name)
By:______________________________________
(Authorized Signature)
-28
SCHEDULE 1
----------
Inconsistent Agreements
-29
