Borland Software Corporation Registration Rights Agreement
Exhibit 4.3
$175,000,000
Borland Software Corporation
2.75% Convertible Senior Notes Due 2012
| February 6, 2007 |
X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Borland Software Corporation, a Delaware corporation (the “Company”), proposes to issue and
sell to X.X. Xxxxxx Securities Inc. (the “Initial Purchaser”) $125,000,000 aggregate principal
amount of its 2.75% Convertible Senior Notes Due 2012 (the “Firm Notes”) and, at the election of
the Initial Purchasers, solely to cover overallotments, an additional $25,000,000 aggregate
principal amount of the Company’s 2.75% Convertible Senior Notes Due 2012 (the “Additional Notes”
and, together with the Firm Notes, the “Notes”), in each case upon the terms and subject to the
conditions set forth in the Purchase Agreement.
As an inducement to the Initial Purchaser to enter into the Purchase Agreement and in
satisfaction of a condition to the obligations of the Initial Purchasers thereunder, the Company
agrees with the Initial Purchaser, for the benefit of the holders (including the Initial Purchaser)
of the Notes and the Shares (as defined below), as follows:
1. Certain Definitions.
Capitalized terms used but not defined herein shall have the meanings given to such terms in
the Purchase Agreement. For purposes of this Registration Rights Agreement, the following terms
shall have the following meanings:
(a) “Additional Notes” has the meaning specified in the first paragraph of this
Agreement.
(b) “Additional Interest” has the meaning assigned thereto in Section 2(d).
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(c) “Additional Interest Payment Date” has the meaning assigned thereto in Section
2(d).
(d) “Affiliate” has the meaning set forth in Rule 405 under the Securities Act, except
as otherwise expressly provided herein.
(e) “Agreement” means this Registration Rights Agreement, as the same may be amended
from time to time pursuant to the terms hereof.
(f) “Business Day” means any day that is not a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to remain closed.
(g) “Closing Date” means the date on which any Notes are initially issued.
(h) “Commission” means the Securities and Exchange Commission, or any other federal
agency at the time administering the Exchange Act or the Securities Act, whichever is the
relevant statute for the particular purpose.
(i) “Company” has the meaning specified in the first paragraph of this Agreement.
(j) “Deferral Notice” has the meaning assigned thereto in Section 3(b).
(k) “Deferral Period” has the meaning assigned thereto in Section 3(b).
(l) “Effective Period” has the meaning assigned thereto in Section 2(a).
(m) “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules
and regulations promulgated thereunder.
(n) “Holder” means each holder, from time to time, of Registrable Securities (including
the Initial Purchaser).
(o) “Indenture” means the Indenture dated as of February 6, 2007 among the Company and
U.S. Bank National Association, as Trustee, pursuant to which the Notes are being issued.
(p) “Initial Purchaser” has the meaning specified in the first paragraph of this
Agreement.
(q) “Material Event” has the meaning assigned thereto in Section 3(a)(iii).
(r) “Majority Holders” shall mean, on any date, Holders of the majority of the Shares
constituting Registrable Securities hereunder; for the purposes of this definition, Holders
of Notes constituting Registrable Securities shall be deemed to be the
Holders of the number of Shares into which such Notes are or would be convertible as of
such date.
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(s) “NASD” shall mean the National Association of Securities Dealers, Inc.
(t) “Notes” has the meaning specified in the first paragraph of this Agreement.
(u) “Notice and Questionnaire” means a written notice delivered to the Company
containing substantially the information called for by the Form of Selling Securityholder
Notice and Questionnaire attached as Annex A to the Offering Memorandum.
(v) “Notice Holder” means, on any date, any Holder that has delivered a Notice and
Questionnaire to the Company on or prior to such date.
(w) “Offering Memorandum” means the Offering Memorandum dated February 1, 2007 relating
to the offer and sale of the Securities.
(x) “Person” means a corporation, limited liability company, association, partnership,
organization, business, individual, government or political subdivision thereof or
governmental agency.
(y) “Prospectus” means the prospectus included in any Shelf Registration Statement
(including, without limitation, a prospectus that discloses information previously omitted
from a prospectus filed as part of an effective registration statement in reliance upon Rule
430A under the Securities Act), as amended or supplemented by any amendment or prospectus
supplement, including post-effective amendments, and all materials incorporated by reference
or explicitly deemed to be incorporated by reference in such Prospectus.
(z) “Purchase Agreement” has the meaning specified in the first paragraph of this
Agreement.
(aa) “Registrable Securities” means the Securities; provided, however, that such
Securities shall cease to be Registrable Securities when (i) such Securities shall cease to
be outstanding (including, in the case of the Notes, upon conversion into Shares); (ii) in
the circumstances contemplated by Section 2(a), a registration statement registering such
Securities under the Securities Act has been declared or becomes effective and such
Securities have been sold or otherwise transferred or disposed of by the Holder thereof
pursuant to such effective registration statement; (iii) such Securities are sold or
otherwise transferred pursuant to Rule 144 under circumstances in which any legend borne by
such Securities relating to restrictions on transferability thereof, under the Securities
Act or otherwise, is removed; (iv) such Securities are eligible to be sold pursuant to Rule
144(k) or any successor provision (but not Rule 144A); or (v) are not “restricted
securities” as such term is defined under Rule 144 and may be freely sold or transferred by
the holder thereof without restriction.
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(bb) “Registration Default” has the meaning assigned thereto in Section 2(d).
(cc) “Registration Expenses” has the meaning assigned thereto in Section 5.
(dd) “Rule 144,” “Rule 405” and “Rule 415” mean, in each case, such rule as promulgated
under the Securities Act.
(ee) “Securities” means, collectively, the Notes and the Shares.
(ff) “Securities Act” means the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.
(gg) “Shares” means the shares of common stock of the Company, par value $0.01 per
share, into which the Notes are convertible or that have been issued upon any conversion
from Notes into common stock of the Company.
(hh) “Shelf Registration Statement” means the shelf registration statement referred to
in Section 2(a), as amended or supplemented by any amendment or supplement, including
post-effective amendments and any additional information contained in a form of prospectus
or prospectus supplement that is deemed retroactively to be a part of the shelf registration
statement pursuant to Rules 430A, 430B or 430C, and all materials incorporated by reference
or explicitly deemed to be incorporated by reference in such Shelf Registration Statement.
(ii) “Special Counsel” shall have the meaning assigned thereto in Section 5.
(jj) “Trust Indenture Act” means the Trust Indenture Act of 1939, as amended, or any
successor thereto, and the rules, regulations and forms promulgated thereunder, all as the
same shall be amended from time to time.
(kk) “Trustee” shall have the meaning assigned such term in the Indenture.
Unless the context otherwise requires, any reference herein to a “Section” or “clause” refers
to a Section or clause, as the case may be, of this Agreement, and the words “herein,” “hereof” and
“hereunder” and other words of similar import refer to this Agreement as a whole and not to any
particular Section or other subdivision. Unless the context otherwise requires, any reference to a
statute, rule or regulation refers to the same (including any successor statute, rule or regulation
thereto) as it may be amended from time to time.
2. Registration Under the Securities Act.
(a) The Company agrees to file under the Securities Act as promptly as practicable, but
in any event within 300 days after the Closing Date, a shelf registration
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statement
providing for the registration of, and the sale on a continuous or delayed basis by the
Holders of, all of the Registrable Securities, pursuant to Rule 415 or any similar rule that
may be adopted by the Commission; provided, that such registration statement shall be an
“automatic shelf registration statement,” as such term is defined in Rule 405
under the Securities Act, if the Company is then eligible to use automatic shelf
registration statements. If the Shelf Registration Statement is not an automatic shelf
registration statement, the Company agrees to use reasonable efforts to cause the Shelf
Registration Statement to become or be declared effective as promptly as practicable, but in
any event no later than 390 days after the Closing Date. The Company agrees to use
reasonable efforts to keep such Shelf Registration Statement continuously effective until
the earlier of (i) the second anniversary of the Closing Date or (ii) such time as each of
the Registrable Securities covered by the Shelf Registration Statement ceases to be a
Registrable Security (as defined herein) (the “Effective Period”). None of the Company’s
securityholders (other than Holders of Registrable Securities) shall have the right to
include any of the Company’s securities in the Shelf Registration Statement.
(b) The Company further agrees that it shall cause the Shelf Registration Statement,
the related Prospectus and any amendment or supplement thereto, as of the effective date of
the Shelf Registration Statement, as of the time of sale of any Securities under such Shelf
Registration Statement, and as of the date of any such amendment or supplement, (i) to
comply in all material respects with the applicable requirements of the Securities Act and
(ii) not to contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements therein (in the
case of the Prospectus, in the light of the circumstances under which they were made) not
misleading, and the Company agrees to furnish to the Holders of the Registrable Securities
seeking to sell Securities pursuant to such amendment or supplement, and to any other Holder
such number of copies as such Holders may reasonably request of any supplement or amendment
prior to its being used or promptly following its filing with the Commission; provided,
however, that the Company shall have no obligation to deliver to Holders of Registrable
Securities copies of any amendment consisting exclusively of an Exchange Act report or other
Exchange Act filing otherwise publicly available on the Company’s website. If the Shelf
Registration Statement, as amended or supplemented from time to time, ceases to be effective
for any reason at any time during the Effective Period (other than because all Registrable
Securities registered thereunder shall have been sold pursuant thereto or shall have
otherwise ceased to be Registrable Securities), the Company shall use reasonable efforts to
obtain the prompt withdrawal of any order suspending the effectiveness thereof.
(c) Each Holder of Registrable Securities agrees that if such Holder wishes to sell
Registrable Securities pursuant to the Shelf Registration Statement and related Prospectus,
it will do so only in accordance with this Section 2(c) and Section 3(b). From and after
the date the Shelf Registration Statement is initially effective, the Company shall, as
promptly as is practicable after the date a proper Notice and Questionnaire is delivered,
and in any event within (x) ten (10) Business Days after the date such Notice and
Questionnaire is received by the Company or (y) if a Notice and Questionnaire is so received
during a Deferral Period, five (5) Business Days after the expiration of such Deferral
Period,
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(i) if required by applicable law, file with the Commission a post-effective
amendment to the Shelf Registration Statement or prepare and, if
required by applicable law, file a supplement to the related Prospectus or a
supplement or amendment to any document incorporated therein by reference or file
any other required document so that the Holder delivering such Notice and
Questionnaire is named as a selling security holder in the Shelf Registration
Statement and the related Prospectus in such a manner as to permit such Holder to
deliver such Prospectus to purchasers of the Registrable Securities in accordance
with applicable law and, if the Company shall file a post-effective amendment to the
Shelf Registration Statement and such amendment is not automatically effective, use
reasonable efforts to cause such post-effective amendment to be declared or to
otherwise become effective under the Securities Act as promptly as is practicable;
(ii) provide such Holder with as many copies of any documents filed pursuant to
Section 2(c)(i) as such Holder may reasonably request in connection with the
Securities covered by such Holder’s Notice and Questionnaire; and
(iii) notify such Holder as promptly as practicable after the effectiveness
under the Securities Act of any post-effective amendment filed pursuant to Section
2(c)(i);
provided that in no event shall the Company be required to make more than one such filing
during any twenty (20) Business Day period and, in addition, if the Shelf Registration
Statement is not an automatic shelf registration statement, the Company shall not be
required to make more than one such filing in any calendar quarter in the form of a
post-effective amendment to the Shelf Registration Statement; provided, further, that if
such Notice and Questionnaire is delivered during a Deferral Period, the Company shall so
inform the Holder delivering such Notice and Questionnaire and shall take the actions set
forth in clauses (i), (ii) and (iii) above upon expiration of the Deferral Period in
accordance with Section 3(b). Notwithstanding anything contained herein to the contrary,
the Company shall be under no obligation to name any Holder that is not a Notice Holder as a
selling securityholder in any Shelf Registration Statement or related Prospectus; provided,
however, that any Holder that becomes a Notice Holder pursuant to the provisions of this
Section 2(c) (whether or not such Holder was a Notice Holder at the time the Shelf
Registration Statement was declared or otherwise became effective) shall be named as a
selling securityholder in the Shelf Registration Statement or related Prospectus in
accordance with the requirements of this Section 2(c).
(d) If any of the following events (any such event a “Registration Default”) shall
occur, then additional interest (the “Additional Interest”) shall become payable by the
Company to Holders in respect of the Notes as follows:
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(i) if the Shelf Registration Statement is not filed with the Commission within
300 days following the Closing Date, then commencing on the 301st day after the
Closing Date, Additional Interest shall accrue on the principal amount of the
outstanding Notes that are Registrable Securities at a rate
of 0.25% per annum for the first 90 days following such 300th day and at a rate
of 0.5% per annum thereafter; or
(ii) if the Shelf Registration Statement has not become or is not declared
effective by the Commission within 390 days following the Closing Date, then
commencing on the 391st day after the Closing Date, Additional Interest shall accrue
on the principal amount of the outstanding Notes that are Registrable Securities at
a rate of 0.25% per annum for the first 90 days following such 390th day and at a
rate of 0.5% per annum thereafter; or
(iii) if the Company has failed to perform its obligations set forth in Section
2(c) hereof within the time periods required therein, then, commencing on the first
day after the date by which the Company was required to perform such obligations,
Additional Interest shall accrue on the principal amount of the outstanding Notes
that are Registrable Securities at a rate of 0.25% per annum for the first 90 days
and at a rate of 0.5% per annum thereafter;
(iv) if the Shelf Registration Statement has become or been declared effective
but such Shelf Registration Statement ceases to be effective at any time during the
Effective Period (other than pursuant to Section 3(b) hereof), then, commencing on
the day such Shelf Registration Statement ceases to be effective, Additional
Interest shall accrue on the principal amount of the outstanding Notes that are
Registrable Securities at a rate of 0.25% per annum for the first 90 days following
such date on which the Shelf Registration Statement ceases to be effective and at a
rate of 0.5% per annum thereafter; or
(v) if the aggregate duration of Deferral Periods in any period exceeds the
number of days permitted in respect of such period pursuant to Section 3(b) hereof,
then, commencing on the day the aggregate duration of Deferral Periods in any period
exceeds the number of days permitted in respect of such period (and again on the
first day of any subsequent Deferral Period during such period), Additional Interest
shall accrue on the principal amount of the outstanding Notes that are Registrable
Securities at a rate of 0.25% per annum for the first 90 days and at a rate of 0.5%
per annum thereafter;
provided, however, that the Additional Interest rate on the Notes shall not exceed in the
aggregate 0.5% per annum and shall not be payable under more than one clause above for any
given period of time, except that if Additional Interest would be payable under more than
one clause above, but at a rate of 0.25% per annum under one clause and at a rate of 0.5%
per annum under the other, then the Additional Interest rate shall be the higher rate of
0.5% per annum; provided further, however, that (1) upon the filing of the Shelf
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Registration Statement (in the case of clause (i) above), (2) upon the effectiveness of the
Shelf Registration Statement (in the case of clause (ii) above), (3) upon the performance by
the Company of its obligations set forth in Section 2(c) hereof within the time periods
required therein (in the case of clause (iii) above), (4) upon the effectiveness of the
Shelf Registration Statement which had ceased to remain effective (in the case of clause
(iv)
above), (5) upon the termination of the Deferral Period that caused the limit on the
aggregate duration of Deferral Periods in a period set forth in Section 3(b) to be exceeded
(in the case of clause (v) above) or (6) when the Notes are no longer Registrable Securities
(in the case of each of clauses (i) through (v) above), Additional Interest on the Notes as
a result of such clause, as the case may be, shall cease to accrue.
Additional Interest on the Notes, if any, will be payable in cash on February 15 and
August 15 of each year (the “Additional Interest Payment Date”) to holders of record of
outstanding Notes that are Registrable Securities at the close of business on February 1 or
August 1 (whether or not a Business Day), as the case may be, immediately preceding the
relevant interest payment date; provided that any Additional Interest accrued with respect
to any Notes or portion thereof submitted for repurchase on a repurchase date or converted
into Shares on a conversion date prior to the Registration Default shall, in any such event,
be paid instead to the Holder who submitted such Notes or portion thereof for repurchase or
conversion on the applicable repurchase date or conversion date, as the case may be, on such
date (or promptly following the conversion date, in the case of conversion). Following the
cure of all Registration Defaults requiring the payment of Additional Interest to the
Holders of Notes that are Registrable Securities pursuant to this Section, the accrual of
Additional Interest will cease (without in any way limiting the effect of any subsequent
Registration Default requiring the payment of Additional Interest).
The Company shall notify the Trustee immediately upon the happening of each and every
Registration Default. The Trustee shall be entitled, on behalf of Holders of Securities, to
seek any available remedy for the enforcement of this Agreement, including for the payment
of any Additional Interest. Notwithstanding the foregoing, the parties agree that the sole
monetary damages payable for a violation of the terms of this Agreement with respect to
which additional monetary amounts are expressly provided shall be as set forth in this
Section 2(d). Nothing shall preclude a Notice Holder or Holder of Registrable Securities
from pursuing or obtaining specific performance or other equitable relief with respect to
this Agreement.
3. Registration Procedures.
The following provisions shall apply to the Shelf Registration Statement filed pursuant to
Section 2:
(a) The Company shall:
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(i) before filing any Shelf Registration Statement or Prospectus or any
amendments or supplements thereto with the Commission, furnish to the Initial
Purchaser copies of all such documents proposed to be filed and use reasonable
efforts to reflect in each such document when so filed with the Commission such
comments as the Initial Purchaser reasonably shall propose;
(ii) use reasonable efforts to prepare and file with the Commission such
amendments and post-effective amendments to the Shelf Registration Statement and
file with the Commission any other required document as may be necessary to keep
such Shelf Registration Statement continuously effective until the expiration of the
Effective Period; cause the related Prospectus to be supplemented by any required
prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 (or
any similar provisions then in force) under the Securities Act; and comply with the
provisions of the Securities Act applicable to it with respect to the disposition of
all Securities covered by such Shelf Registration Statement during the Effective
Period in accordance with the intended methods of disposition by the sellers thereof
set forth in such Shelf Registration Statement as so amended or such Prospectus as
so supplemented;
(iii) as promptly as reasonably practicable, notify the Notice Holders of
Registrable Securities (A) when such Shelf Registration Statement or the Prospectus
included therein or any amendment or supplement to the Prospectus or post-effective
amendment has been filed with the Commission, and, with respect to such Shelf
Registration Statement or any post-effective amendment, when the same is declared or
has become effective, (B) of any request, following the effectiveness of the Shelf
Registration Statement, by the Commission or any other Federal or state governmental
authority for amendments or supplements to the Shelf Registration Statement or
related Prospectus, (C) of the issuance by the Commission of any stop order
suspending the effectiveness of such Shelf Registration Statement or the initiation
or written threat of any proceedings for that purpose, (D) of the receipt by the
Company of any notification with respect to the suspension of the qualification of
the Registrable Securities for sale in any jurisdiction or the initiation or written
threat of any proceeding for such purpose, (E) of the occurrence of (but not the
nature of or details concerning) any event or the existence of any fact (a “Material
Event”) as a result of which any Shelf Registration Statement shall contain any
untrue statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not misleading, or any
Prospectus shall contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading (provided, however, that no notice by the Company shall be required
pursuant to this clause (E) in the event that the Company either promptly files a
prospectus supplement to update the Prospectus or a Form 8-K or other appropriate
Exchange Act report that is incorporated by reference into the Shelf Registration
Statement, which, in either
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case, contains the requisite information with respect to
such Material Event that results in such Shelf Registration Statement or Prospectus,
as the case may be, no longer containing any untrue statement of material fact or
omitting to state a material fact necessary to make the statements contained
therein, in the case of the Prospectus, in light of the circumstances under which
they were made, not misleading), (F) of the determination by the Company that a
post-effective amendment to the Shelf Registration Statement (other than for the
purpose of
naming a Notice Holder as a selling security holder therein) will be filed with
the Commission, which notice may, at the discretion of the Company (or as required
pursuant to Section 3(b)), state that it constitutes a Deferral Notice, in which
event the provisions of Section 3(b) shall apply or (G) at any time when a
Prospectus is required (or but for the exemption contained in Rule 172 would be
required) to be delivered under the Securities Act, that the Shelf Registration
Statement, Prospectus, Prospectus amendment, supplement or post-effective amendment
does not conform in all material respects to the applicable requirements of the
Securities Act and the Trust Indenture Act and the rules and regulations of the
Commission thereunder;
(iv) prior to any public offering of the Registrable Securities pursuant to the
Shelf Registration Statement, use reasonable efforts to register or qualify, or
cooperate with the Notice Holders of Securities included therein and their
respective counsel in connection with the registration or qualification of such
Securities for offer and sale under the securities or blue sky laws of such
jurisdictions as any such Notice Holders reasonably requests in writing and do any
and all other acts or things reasonably necessary or advisable to enable the offer
and sale in such jurisdictions of the Securities covered by the Shelf Registration
Statement; prior to any public offering of the Registrable Securities pursuant to
the Shelf Registration Statement, use reasonable efforts to keep each such
registration or qualification (or exemption therefrom) effective during the
Effective Period in connection with such Notice Holder’s offer and sale of
Registrable Securities pursuant to such registration or qualification (or exemption
therefrom) and do any and all other acts or things reasonably necessary or advisable
to enable the disposition in such jurisdictions of such Registrable Securities in
the manner set forth in the Shelf Registration Statement and the related Prospectus;
provided that the Company will not be required to qualify generally to do business
in any jurisdiction where it is not then so qualified or to take any action which
would subject it to general service of process or to taxation in any such
jurisdiction where it is not then so subject;
(v) use reasonable efforts to prevent the issuance of, and if issued, to obtain
the withdrawal of any order suspending the effectiveness of the Shelf Registration
Statement or any post-effective amendment thereto, and to lift any suspension of the
qualification of any of the Registrable Securities for sale in any jurisdiction in
which they have been qualified for sale, in each case at the earliest practicable
date;
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(vi) upon reasonable notice, for a reasonable period prior to the filing of the
Shelf Registration Statement, and throughout the Effective Period, (i) make
reasonably available for inspection by a representative of, and Special Counsel
acting for, Majority Holders of the Securities being sold and any underwriter (and
its counsel) participating in any disposition of Securities pursuant to such Shelf
Registration Statement (collectively, the “Shelf Inspectors”), all relevant
financial and other records and pertinent corporate documents of the Company
and its subsidiaries and (ii) use reasonable efforts to have its officers,
directors, employees, accountants and counsel supply all relevant information
reasonably requested by such representative, Special Counsel or any such underwriter
in connection with such Shelf Registration Statement, in each case as is reasonable
and customary for similar “due diligence” examinations; provided, however, that with
respect to any Special Counsel engaged by the Majority Holders, the foregoing
inspection and information gathering shall be coordinated by one counsel designated
by the Majority Holders;
(vii) if requested by Majority Holders of the Securities being sold in an
underwriting, its Special Counsel or the managing underwriters (if any) in
connection with such Shelf Registration Statement, use reasonable efforts to cause
(i) its counsel to deliver an opinion relating to the Shelf Registration Statement
and the Securities in a customary form, (ii) its officers to execute and deliver all
customary documents and certificates requested by the Majority Holders of the
Securities being sold, their Special Counsel or the managing underwriters (if any)
and (iii) its registered independent public accounting firm to provide a comfort
letter or letters relating to the Shelf Registration Statement in a reasonable and
customary form, subject to receipt of appropriate documentation as contemplated, and
only if permitted, by Statement of Auditing Standards No. 72 or any successor
statement thereto, covering matters of the type customarily covered in comfort
letters in connection with secondary underwritten offerings;
(viii) if reasonably requested by the Initial Purchaser or any Notice Holder as
a result of the “due diligence” examinations referred to in Section 3(a)(vi) above,
promptly incorporate in a prospectus supplement or post-effective amendment to the
Shelf Registration Statement such information as the Initial Purchaser or such
Notice Holder shall, on the basis of a written opinion of Special Counsel, determine
to be required to be included therein by applicable law and make any required
filings of such prospectus supplement or such post-effective amendment; provided,
that the Company shall not be required to take any actions under this Section
3(a)(viii) that are not, in the reasonable opinion of counsel for the Company, in
compliance with applicable law;
(ix) as promptly as practicable furnish to each Notice Holder and the Initial
Purchaser, upon their request and without charge, at least one (1) conformed copy of
the Shelf Registration Statement and any amendments thereto, including financial
statements but excluding schedules, all documents
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incorporated or deemed to be
incorporated therein by reference and all exhibits; provided, however, that the
Company shall have no obligation to deliver to Notice Holders or the Initial
Purchaser a copy of any amendment consisting exclusively of an Exchange Act report
or other Exchange Act filing otherwise publicly available on the Company’s website
or in the Commission’s XXXXX database;
(x) during the Effective Period, deliver to each Notice Holder in connection
with any sale of Registrable Securities pursuant to the Shelf
Registration Statement, upon their request and without charge, as many copies
of the Prospectus relating to such Registrable Securities (including each
preliminary prospectus) and any amendment or supplement thereto as such Notice
Holder may reasonably request; and the Company hereby consents (except during such
periods that a Deferral Notice is outstanding and has not been revoked) to the use
of such Prospectus or each amendment or supplement thereto by each Notice Holder in
connection with any offering and sale of the Registrable Securities covered by such
Prospectus or any amendment or supplement thereto in the manner set forth therein
and subject to applicable law;
(xi) cooperate with the Notice Holders to facilitate the timely preparation and
delivery of certificates representing Securities to be sold pursuant to the Shelf
Registration Statement free of any restrictive legends and in such denominations as
permitted by the Indenture and registered in such names as the Holders thereof may
request in writing at least two (2) Business Days prior to sales of Securities
pursuant to such Shelf Registration Statement; and
(xii) not use, authorize the use of, refer to, or participate in the planning
for use of, any “free writing prospectus”, as defined in Rule 405 under the
Securities Act, in connection with the offering or sale of the Securities, without
the consent of Holders of Registrable Securities who are seeking to sell Securities
pursuant to the Shelf Registration Statement or relevant supplement or amendment
thereto, which consent shall not be unreasonably withheld.
(b) Upon (A) the issuance by the Commission of a stop order suspending the
effectiveness of the Shelf Registration Statement or the initiation of proceedings with
respect to the Shelf Registration Statement under Section 8(d) or 8(e) of the Securities
Act, (B) the occurrence of any event or the existence of any Material Event as a result of
which the Shelf Registration Statement shall contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary to make the
statements therein not misleading, or any Prospectus shall contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under which they were
made, not misleading, or (C) the occurrence or existence of any corporate development that,
in the discretion of the Company, makes it appropriate to suspend the availability of the
Shelf Registration Statement and the related Prospectus, the Company will (i) in the case of
clause (B) above, subject to the third sentence of this provision, as
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promptly as
practicable prepare and file an amendment to such Shelf Registration Statement or a
supplement to the related Prospectus or any document incorporated therein by reference or
file any other required document that would be incorporated by reference into such Shelf
Registration Statement and Prospectus so that such Shelf Registration Statement does not
contain any untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not misleading, and such
Prospectus does not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading, as thereafter delivered or made available to the purchasers of the
Registrable Securities being sold thereunder, and, in the case of a post-effective amendment
to the Shelf Registration Statement, subject to the third sentence of this provision, use
reasonable efforts to cause it to be declared effective or otherwise become effective as
promptly as practicable and (ii) give notice to the Notice Holders that the availability of
the Shelf Registration Statement is suspended (a “Deferral Notice”). The Company will use
reasonable efforts to ensure that the use of the Prospectus may be resumed (x) in the case
of clause (A) above, as promptly as practicable, (y) in the case of clause (B) above, as
soon as, in the sole judgment of the Company, public disclosure of such Material Event would
not be prejudicial to or contrary to the interests of the Company or, if necessary to avoid
unreasonable burden or expense, as soon as practicable thereafter and (z) in the case of
clause (C) above, as soon as, in the discretion of the Company, such suspension is no longer
appropriate; provided that the period during which the availability of the Shelf
Registration Statement and any Prospectus is suspended (the “Deferral Period”), without the
Company incurring any obligation to pay Additional Interest pursuant to Section 2(d), shall
not exceed one hundred and twenty (120) days in the aggregate in any twelve (12) month
period. The Company need not specify the nature of the event giving rise to a Deferral
Notice in any Deferral Notice or other notice to Notice Holders of the existence of a
Deferral Period.
(c) Each Holder of Registrable Securities agrees that upon receipt of any Deferral
Notice from the Company, such Holder shall forthwith discontinue (and cause any placement or
sales agent or underwriters acting on their behalf to discontinue) the disposition of
Registrable Securities pursuant to the Shelf Registration Statement until such Holder (i)
shall have received copies of such amended or supplemented Prospectus (including copies of
any additional or supplemental filings that are incorporated or deemed incorporated by
reference in such Prospectus) and, if so directed by the Company, such Holder shall deliver
to the Company (at the Company’s expense) all copies, other than permanent file copies, then
in such Holder’s possession of the Prospectus covering such Registrable Securities at the
time of receipt of such notice or (ii) shall have received notice from the Company that the
disposition of Registrable Securities pursuant to the Shelf Registration may continue.
(d) The Company may require each Holder of Registrable Securities as to which any
registration pursuant to Section 2(a) is being effected to furnish to the Company such
information regarding such Holder and such Holder’s intended method of
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distribution of such
Registrable Securities as the Company may from time to time reasonably request in writing,
but only to the extent that such information is required in order to comply with the
Securities Act.
(e) The Company shall comply with all applicable rules and regulations of the
Commission and make generally available to its securityholders earning statements (which
need not be audited) satisfying the provisions of Section 11(a) of the Securities Act and
Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than
45 days after the end of any 12-month period (or 90 days after the end of any 12-month
period if such period is a fiscal year) commencing on the first day of the
first fiscal quarter of the Company commencing after the effective date of the Shelf
Registration Statement, which statements shall cover said 12-month periods.
(f) The Company shall provide a CUSIP number for all Registrable Securities covered by
the Shelf Registration Statement not later than the initial effective date of such Shelf
Registration Statement and provide the Trustee and the transfer agent for the Shares with
printed certificates for the Registrable Securities that are in a form eligible for deposit
with The Depository Trust Company.
(g) The Company shall use reasonable efforts to provide such information as is required
for any filings required to be made with the National Association of Securities Dealers,
Inc.
(h) Until the expiration of the Effective Period, the Company will not, and will not
permit any of its “affiliates” (as defined in Rule 144) to, resell any of the Securities
that have been reacquired by any of them except pursuant to an effective registration
statement under the Securities Act.
(i) The Company shall cause the Indenture to be qualified under the Trust Indenture Act
in a timely manner and shall enter into any necessary supplemental indentures in connection
therewith.
(j) The Company shall enter into such customary agreements and take such other
reasonable and lawful actions in connection therewith (including those requested by the
Majority Holders of the Registrable Securities being sold) in order to expedite or
facilitate disposition of such Registrable Securities.
4. Holders’ Obligations.
(a) Each Holder agrees, by acquisition of the Registrable Securities, that no Holder of
Registrable Securities shall be entitled to sell any of such Registrable Securities pursuant
to the Shelf Registration Statement or to receive a Prospectus relating thereto, unless such
Holder has furnished the Company with a Notice and Questionnaire as required pursuant to
Section 2(c) hereof (including the information required to be included in such Notice and
Questionnaire) and the information set forth in the next sentence. Each Notice Holder
agrees to notify the Company as promptly as practicable
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of any inaccuracy or change in
information previously furnished by such Notice Holder to the Company or of the occurrence
of any event in either case as a result of which any Prospectus relating to such
registration contains or would contain an untrue statement of a material fact regarding such
Notice Holder or such Notice Holder’s intended method of disposition of such Registrable
Securities or omits to state any material fact regarding such Notice Holder or such Notice
Holder’s intended method of disposition of such Registrable Securities required to be stated
therein or necessary to make the statements therein not misleading, and promptly to furnish
to the Company (i) any additional information required to correct and update any previously
furnished information or required so that such Prospectus shall not contain, with respect to
such Notice Holder or
the disposition of such Registrable Securities, 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 (ii) any other information regarding such Notice
Holder and the distribution of such Registrable Securities as may be required to be
disclosed in the Shelf Registration Statement under applicable law or pursuant to Commission
comments. Each Holder further agrees not to sell any Registrable Securities pursuant to the
Shelf Registration Statement without delivering, causing to be delivered, or, if permitted
by applicable law, making available, a Prospectus to the purchaser thereof and, following
termination of the Effective Period, to notify the Company, within ten (10) Business Days of
a request by the Company, of the amount of Registrable Securities sold pursuant to the Shelf
Registration Statement and, in the absence of a response, the Company may assume that all of
the Holder’s Registrable Securities were so sold in compliance with applicable law and this
Agreement.
(b) Any sale of any Registrable Securities by any Holder shall constitute a
representation and warranty by such Holder that the information relating to such Holder and
its plan of distribution is as set forth in the Prospectus delivered by such Holder in
connection with such disposition, that such Prospectus does not as of the time of such sale
contain any untrue statement of a material fact relating to or provided by such Holder or
its plan of distribution and that such Prospectus does not as of the time of such sale omit
to state any material fact relating to or provided by such Holder or its plan of
distribution necessary to make the statements in such Prospectus, in the light of the
circumstances under which they were made, not misleading. Each Holder further agrees that
such Holder will not make any offer relating to the Registrable Securities that would
constitute an “issuer free writing prospectus” (as defined in Rule 433 under the Securities
Act) or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405
under the Securities Act) required to be filed by the Company with the Commission or
retained by the Company under Rule 433 of the Securities Act, unless it has obtained the
prior written consent of the Company.
5. Registration Expenses.
The Company agrees to bear and to pay or cause to be paid promptly after request being made
therefore all fees and expenses incident to the Company’s performance of or compliance with this
Agreement, including, but not limited to, (a) all Commission and any NASD
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registration and filing
fees and expenses, (b) all fees and expenses in connection with the qualification of the Securities
for offering and sale under the State securities and Blue Sky laws referred to in Section 3(a)(v)
hereof, including reasonable fees and disbursements of one counsel for the placement agent or
underwriters, if any, in connection with such qualifications, (c) all expenses relating to the
preparation, printing, distribution and reproduction of the Shelf Registration Statement, the
related Prospectus, each amendment or supplement to each of the foregoing, the certificates
representing the Securities and all other documents relating hereto, (d) fees and expenses of the
Trustee under the Indenture, any escrow agent or custodian, and of the registrar and transfer agent
for the Shares, (e) fees, disbursements and expenses of counsel and the registered independent
public accounting firm of the Company (including the expenses of any opinions or “cold comfort”
letters required by or incident to such performance and
compliance) and (f) reasonable fees, disbursements and expenses of one counsel for all Holders of
Registrable Securities retained in connection with the Shelf Registration Statement, as selected by
the Company (unless reasonably objected to by the Majority Holders of the Registrable Securities
being registered, in which case the Majority Holders shall select such counsel for the Holders)
(“Special Counsel”), and fees, expenses and disbursements of any other Persons, including special
experts, retained by the Company in connection with such registration (collectively, the
“Registration Expenses”). To the extent that any Registration Expenses are incurred, assumed or
paid by any Holder of Registrable Securities or any underwriter or placement agent therefor, the
Company shall reimburse such Person for the full amount of the Registration Expenses so incurred,
assumed or paid promptly after receipt of a documented request therefor. Notwithstanding the
foregoing, the Holders of the Registrable Securities being registered shall pay all underwriting
discounts and commissions and placement agent fees and commissions attributable to the sale of such
Registrable Securities and the fees and disbursements of any counsel or other advisors or experts
retained by such Holders (severally or jointly), other than the counsel and experts specifically
referred to above.
6. Indemnification.
(a) The Company shall indemnify and hold harmless each Notice Holder (including,
without limitation, any Initial Purchaser), its Affiliates, their respective officers,
directors, employees, representatives and agents, and each person, if any, who controls such
Notice Holder within the meaning of the Securities Act or the Exchange Act (collectively
referred to for purposes of this Section 6 and Section 7 as an “Indemnified Holder”) from
and against any loss, claim, damage or liability, joint or several, or any action in respect
thereof (including, without limitation, any loss, claim, damage, liability or action
relating to purchases and sales of Securities), to which that Indemnified Holder may become
subject, whether commenced or threatened, under the Securities Act, the Exchange Act, any
other federal or state statutory law or regulation, at common law or otherwise, insofar as
such loss, claim, damage, liability or action arises out of, or is based upon, (i) any
untrue statement or alleged untrue statement of a material fact contained in any such Shelf
Registration Statement or any Prospectus forming part thereof, or (ii) the omission or
alleged omission to state therein a material fact required to be stated therein or necessary
in order to make the statements therein, in the light of the circumstances under which they
were made, not misleading, and shall reimburse each
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Indemnified Holder promptly upon demand
for any legal or other expenses reasonably incurred by that Indemnified Holder in connection
with investigating or defending or preparing to defend against or appearing as a third party
witness in connection with any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage, liability or action arises out of, or
is based upon, an untrue statement or alleged untrue statement in or omission or alleged
omission from any of such documents in reliance upon and in conformity with any information
provided by such Indemnified Holder in writing to the Company expressly for use therein.
This indemnity agreement shall be in addition to any liability that the Company may
otherwise have.
(b) Each Notice Holder shall indemnify and hold harmless the Company, its Affiliates,
their respective officers, directors, employees, representatives and agents, and each
person, if any, who controls the Company within the meaning of the Securities Act or the
Exchange Act (collectively referred to for purposes of this Section 6(b) and Section 7 as
the Company), from and against any loss, claim, damage or liability, joint or several, or
any action in respect thereof, to which the Company may become subject, whether commenced or
threatened, under the Securities Act, the Exchange Act, any other federal or state statutory
law or regulation, at common law or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained in any such Shelf Registration Statement or
any Prospectus forming part thereof, or (ii) the omission or alleged omission to state
therein a material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not
misleading, but in each case only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in conformity with
any information furnished to the Company in writing by such Notice Holder expressly for use
therein, and shall reimburse the Company for any legal or other expenses reasonably incurred
by the Company in connection with investigating or defending or preparing to defend against
or appearing as a third party witness in connection with any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that no such Notice
Holder shall be liable for any indemnity claims hereunder in excess of the amount of net
proceeds received by such Notice Holder from the sale of Securities pursuant to such Shelf
Registration Statement. This indemnity agreement will be in addition to any liability which
any such Notice Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 6 of notice of
any claim or the commencement of any action, the indemnified party shall, if a claim in
respect thereof is to be made against the indemnifying party pursuant to Section 6(a) or
6(b), notify the indemnifying party in writing of the claim or the commencement of that
action; provided, however, that the failure to notify the indemnifying party shall not
relieve it from any liability that it may have under this Section 6 except to the extent
that it has been materially prejudiced (through the forfeiture of substantive rights or
defenses) by such failure; and provided, further, that the
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failure to notify the
indemnifying party shall not relieve it from any liability that it may have to an
indemnified party otherwise than under this Section 6. If any such claim or action shall be
brought against an indemnified party, and it shall notify the indemnifying party thereof,
the indemnifying party shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to assume the defense
thereof with counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the defense of such
claim or action, the indemnifying party shall not be liable to the indemnified party under
this Section 6 for any legal or other expenses subsequently incurred by the indemnified
party in connection with the defense thereof other than the reasonable costs of
investigation; provided, however, that an indemnified party shall have the right to employ
its own counsel in any such action, but the fees, expenses and other
charges of such counsel for the indemnified party will be at the expense of such
indemnified party unless (1) the employment of counsel by the indemnified party has been
authorized in writing by the indemnifying party, (2) the indemnified party has reasonably
concluded (based upon advice of counsel to the indemnified party) that there may be legal
defenses available to it or other indemnified parties that are different from or in addition
to those available to the indemnifying party, (3) a conflict or potential conflict exists
(based upon advice of counsel to the indemnified party) between the indemnified party and
the indemnifying party (in which case the indemnifying party will not have the right to
direct the defense of such action on behalf of the indemnified party) or (4) the
indemnifying party has not in fact employed counsel reasonably satisfactory to the
indemnified party to assume the defense of such action within a reasonable time after
receiving notice of the commencement of the action, in each of which cases the reasonable
fees, disbursements and other charges of counsel will be at the expense of the indemnifying
party or parties. It is understood that the indemnifying party or parties shall not, in
connection with any proceeding or related proceedings in the same jurisdiction, be liable
for the reasonable fees, disbursements and other charges of more than one separate firm of
attorneys (in addition to any local counsel) at any one time for all such indemnified party
or parties. Each indemnified party, as a condition of the indemnity agreements contained in
Sections 6(a) and 6(b), shall use its reasonable efforts to cooperate with the indemnifying
party in the defense of any such action or claim. No indemnifying party shall be liable for
any settlement of any such action effected without its written consent (which consent shall
not be unreasonably withheld), but if settled with its written consent or if there be a
final judgment for the plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and against any loss or liability by
reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any
time an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses or counsel as contemplated by this section, the
indemnifying party agrees that it shall be liable for any settlement of any proceeding
effected without its written consent if (i) such settlement is entered into more than 45
days after receipt by such indemnifying party of a request in writing setting forth proposed
settlement terms from the indemnified party and (ii) such indemnifying party shall not have
reimbursed the indemnified party in accordance with the aforesaid request prior to the date
of such settlement. No
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indemnifying party shall, without the prior written consent of the
indemnified party (which consent shall not be unreasonably withheld), effect any settlement
of any pending or threatened proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement (i) includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such proceeding and (ii)
does not include a statement or admission of fault, culpability or a failure to act, by or
on behalf of the indemnified party.
(d) The provisions of this Section 6 and Section 7 shall remain in full force and
effect, regardless of any investigation made by or on behalf of any Notice Holder, the
Company, or any of the indemnified Persons referred to in this Section 6 and Section 7,
and shall survive the sale by a Notice Holder of Securities covered by the Shelf
Registration Statement.
7. Contribution.
If the indemnification provided for in Section 6 is unavailable or insufficient to hold
harmless an indemnified party under Section 6(a) or 6(b), then each indemnifying party shall, in
lieu of indemnifying such indemnified party, contribute to the amount paid or payable by such
indemnified party as a result of such loss, claim, damage or liability, or action in respect
thereof, (i) in such proportion as shall be appropriate to reflect the relative benefits received
by the Company from the offering and sale of the Notes, on the one hand, and a Holder with respect
to the sale by such Holder of Securities, on the other, or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also the relative fault
of the Company on the one hand and such Holder on the other with respect to the statements or
omissions that resulted in such loss, claim, damage or liability, or action in respect thereof, as
well as any other relevant equitable considerations. The relative benefits received by the Company
on the one hand and a Holder on the other with respect to such offering and such sale shall be
deemed to be in the same proportion as the total net proceeds from the offering of the Notes
(before deducting expenses) received by or on behalf of the Company, on the one hand, and the total
net proceeds (before deducting expenses) received by such Holder upon a resale of the Securities,
on the other, bear to the total gross proceeds from the sale of all Securities pursuant to the
Shelf Registration Statement in the offering of the Securities from which the contribution claim
arises. The relative fault 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 the Company or information supplied by the Company on the one hand or to
any information contained in the relevant Notice and Questionnaire supplied by such Holder on the
other, the intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The Notice Holders’
respective obligations to contribute pursuant to this Section 7 are several in proportion to the
respective number of Registrable Securities they have sold pursuant to the Shelf Registration
Statement and not joint. The parties hereto agree that it would not be just and equitable if
contributions pursuant to this Section 7 were to be determined by pro rata allocation or by any
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other method of allocation that does not take into account the equitable considerations referred to
herein. The amount paid or payable by an indemnified party as a result of the loss, claim, damage
or liability, or action in respect thereof, referred to above in this Section 7 shall be deemed to
include, for purposes of this Section 7, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending or preparing to defend any such
action or claim. Notwithstanding the provisions of this Section 7, an indemnifying party that is a
Holder of Securities shall not be required to contribute any amount in excess of the amount by
which the total price at which the Securities sold by such indemnifying party to any purchaser
exceeds the amount of any damages which such indemnifying party has otherwise paid or become liable
to pay by reason of any untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
8. Information Requirements.
The Company covenants that, if at any time before the end of the Effective Period the Company
is not subject to the reporting requirements of the Exchange Act, it will cooperate with any Holder
and take such further action as any Holder may reasonably request in writing (including, without
limitation, making such representations as any such Holder may reasonably request), all to the
extent required from time to time to enable such Holder to sell Registrable Securities without
registration under the Securities Act within the limitation of the exemptions provided by Rule 144
and Rule 144A under the Securities Act and customarily taken in connection with sales pursuant to
such exemptions. Upon the written request of any Holder, the Company shall deliver to such Holder
a written statement as to whether it has complied with such filing requirements, unless such a
statement has been included in the Company’s most recent report filed pursuant to Section 13 or
Section 15(d) of Exchange Act. Notwithstanding the foregoing, nothing in this Section 8 shall be
deemed to require the Company to register any of its securities under any section of the Exchange
Act.
9. Miscellaneous.
(a) Amendments and Waivers. The provisions of this Agreement may not be amended,
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 the Majority Holders.
Notwithstanding the foregoing, a waiver or consent to depart from the provisions hereof with
respect to a matter that relates exclusively to the rights of Holders whose Securities are being
sold pursuant to the Shelf Registration Statement and that does not directly or indirectly affect
the rights of other Holders may be given by Holders of a majority in aggregate amount of the
Securities being sold by such Holders pursuant to the Shelf Registration Statement.
Notwithstanding the foregoing sentence, (i) this Agreement may be amended by written agreement
signed by the Company and the Initial Purchaser, without the consent of the Holders of Registrable
Securities, to cure any ambiguity or to correct or supplement any provision contained herein that
may be defective or inconsistent with any other provision contained herein, or to make such other
provisions in regard to matters or questions arising under
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this Agreement that shall not adversely
affect the interests of the Holders of Registrable Securities. Each Holder of Registrable
Securities outstanding at the time of any such amendment, modification, supplement, waiver or
consent or thereafter shall be bound by any such amendment, modification, supplement, waiver or
consent effected pursuant to this Section 8(a), whether or not any notice, writing or marking
indicating such amendment, modification, supplement, waiver or consent appears on the Registrable
Securities or is delivered to such Holder.
(b) Notices. All notices and other communications provided for or permitted hereunder
shall be made in writing by hand-delivery, first-class mail, telecopier or air courier guaranteeing
next-day delivery:
(1) If to the Company, initially at the address set forth in the Purchase
Agreement;
(2) If to the Initial Purchaser, initially at the address set forth in the
Purchase Agreement; and
(3) If to a Holder, to the address of such Holder set forth in the security
register, the Notice and Questionnaire or other records of the Company.
All such notices and communications shall be deemed to have been duly given: when delivered by
hand, if personally delivered; one (1) Business Day after being delivered to a next-day air
courier; five (5) Business Days after being deposited in the mail, if being delivered by
first-class mail; and when receipt is acknowledged by the recipient’s telecopier machine, if sent
by telecopier.
(c) Successors and Assigns. This Agreement shall be binding upon the Company and each
of its successors and assigns. Any person who purchases any Registrable Securities from the
Initial Purchaser shall be deemed, for purposes of this Agreement, to be an assignee of the Initial
Purchaser. This Agreement shall inure to the benefit of and be binding upon the successors and
assigns of each of the parties and shall inure to the benefit of and be binding upon each Holder of
any Registrable Securities, provided that nothing herein shall be deemed to permit any assignment,
transfer or other disposition of Registrable Securities in violation of the terms of the Indenture.
If any transferee of any Holder shall acquire Registrable Securities, in any manner, whether by
operation of law or otherwise, such Registrable Securities shall be held subject to all of the
terms of this Agreement, and by taking and holding such Registrable Securities, such person shall
be conclusively deemed to have agreed to be bound by and to perform all of the terms and provisions
of this Agreement and such person shall be entitled to receive the benefits hereof.
(d) Counterparts. This Agreement may be executed in any number of counterparts (which
may be delivered in original form or by telecopier) 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.
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(e) Headings. The headings in this Agreement are for convenience of reference only
and shall not limit or otherwise affect the meaning hereof.
(f) Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
(g) Remedies. In the event of a breach by the Company or by any Holder of any of
their respective obligations under this Agreement, each Holder or the Company, as the case may be,
in addition to being entitled to exercise all rights granted by law, including recovery of damages
(other than the recovery of damages for a breach by the Company of its obligations under Section 3
hereof for which Additional Interest has been paid pursuant to Section 2 hereof), will be entitled
to specific performance of its rights under this Agreement. The Company and each Holder agree that
monetary damages would not be adequate compensation for any loss incurred by reason of a breach by
it of any of the provisions of this Agreement and hereby
further agree that, in the event of any action for specific performance in respect of such
breach, it shall waive the defense that a remedy at law would be adequate.
(h) No Inconsistent Agreements. The Company represents, warrants and agrees that (i)
it has not entered into and shall not on or after the date of this Agreement enter into any
agreement that is inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof, (ii) it has not previously entered into any
agreement which remains in effect granting any registration rights with respect to any of its debt
securities to any person and (iii) without limiting the generality of the foregoing, without the
written consent of the Majority Holders, it shall not grant to any Person the right to request the
Company to register any securities of the Company under the Securities Act unless the rights so
granted are not in conflict or inconsistent with the provisions of this Agreement.
(i) No Piggyback on Registrations. Neither the Company nor any of its security
holders (other than the Holders of Restricted Securities in such capacity) shall have the right to
include any securities of the Company in any Shelf Registration Statement other than Registrable
Securities.
(j) Severability. The remedies provided herein are cumulative and not exclusive of
any remedies provided by law. If any term, provision, covenant or restriction of this Agreement is
held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in
full force and effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their reasonable efforts to find and employ an alternative means to achieve the
same or substantially the same result as that contemplated by such term, provision, covenant or
restriction. It is hereby stipulated and declared to be the intention of the parties that they
would have executed the remaining terms, provisions, covenants and restrictions without including
any term, provision, covenant or restriction that may be hereafter declared invalid, illegal, void
or unenforceable.
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(k) Survival. The respective indemnities, agreements, representations, warranties and
each other provision set forth in this Agreement or made pursuant hereto shall remain in full force
and effect regardless of any investigation (or statement as to the results thereof) made by or on
behalf of any Holder of Registrable Securities, any director, officer or partner of such Holder,
any agent or underwriter or any director, officer or partner thereof, or any controlling person of
any of the foregoing, and shall survive delivery of and payment for the Registrable Securities
pursuant to the Purchase Agreement and the transfer and registration of Registrable Securities by
such Holder.
(l) Securities Held by the Company, etc. Whenever the consent or approval of Holders
of a specified percentage of Securities is required hereunder, Securities held by the Company or
its Affiliates (other than subsequent Holders of Securities if such subsequent Holders are deemed
to be Affiliates solely by reason of their holdings of such Securities) shall not be counted in
determining whether such consent or approval was given by the Holders of such required percentage.
(m) Termination. This Agreement and the obligations of the parties hereunder shall
terminate upon the end of the Effective Period, except for any liabilities or obligations under
Sections 3(e), 3(h), 4, 5, 6 and 7 hereof and the obligations to make payments of and provide for
Additional Interest under Section 2(d) hereof to the extent such damages accrue prior to the end of
the Effective Period, each of which shall remain in effect in accordance with its terms.
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If the foregoing is in accordance with your understanding of our agreement, kindly sign and
return to us a counterpart hereof, whereupon this instrument will become a binding agreement
between the Company and the Initial Purchaser in accordance with its terms.
| Very truly yours, | ||||||
| THE COMPANY | ||||||
| BORLAND SOFTWARE CORPORATION | ||||||
| By: Name: |
/s/ Xxx Xxxxxxx
|
|||||
| Title: | President and Chief Executive Officer | |||||
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Accepted: February 6, 2007
By: X.X. XXXXXX SECURITIES INC.
| By: | /s/ Xxxxx X. Xxxx
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| Name: | Xxxxx X. Xxxx | |||||
| Title: | Executive Director |
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