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EXHIBIT 4.2
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REGISTRATION RIGHTS
AGREEMENT
Dated as of August 7, 1997
By and Between
DSC COMMUNICATIONS CORPORATION
and
XXXXXXX, XXXXX & CO. and
NATIONSBANC CAPITAL MARKETS, INC.
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REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT, dated as of August 7,
1997, is made by and between DSC Communications Corporation, a Delaware
corporation (the "Company"), and Xxxxxxx, Sachs & Co. and NationsBanc Capital
Markets, Inc. (collectively referred to herein as the "Purchasers").
RECITALS
WHEREAS, the Company and the several Purchasers have entered
into a purchase agreement, dated August 7, 1997 (the "Purchase Agreement"),
providing for, among other things, the sale by the Company and the purchase by
the Purchasers of an aggregate of U.S.$300,000,000 principal amount, and, at
the election of the Purchasers, up to an aggregate of U.S.$100,000,000
additional principal amount, of the Company's 7% Convertible Subordinated Notes
due August 1, 2004, convertible into shares of Common Stock (as defined herein)
of the Company as provided in the Indenture (as defined herein); and
WHEREAS, this Agreement is being entered into pursuant to the
Purchase Agreement as a condition to the closing of the sale of the Securities
(as defined herein) pursuant thereto;
NOW, THEREFORE, in consideration of the premises, and of the
mutual covenants, representations, warranties and agreements herein contained,
the parties hereto agree as follows:
1. Certain Definitions.
As used in this Agreement, the following terms shall have the
following respective meanings:
(a) "Closing Date" shall mean the First Time of Delivery
as defined in the Purchase Agreement.
(b) "Commission" shall mean 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.
(c) "Common Stock" means the common stock, par value $.01
per share, of the Company, together with the related Preferred Share Purchase
Rights of
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the Company issuable with such shares and any securities of the Company or any
successor which may be issuable upon conversion of the Securities pursuant to
Article Twelve of the Indenture.
(d) "Effective Time" shall mean the date on which the
Commission declares the Registration Statement effective or on which the
Registration Statement otherwise becomes effective.
(e) "Electing Holder" shall have the meaning assigned
thereto in Section 3(c) of this Agreement; provided, however, that, if the
record holder of any Registrable Securities is The Depository Trust Company (or
a successor thereto) or its nominee, the holder of such securities shall mean
the person that would be considered the holder thereof for purposes of Item 507
of Regulation S-K under the Securities Act.
(f) "Exchange Act" shall mean the Securities Exchange Act
of 1934, or any successor thereto, as the same shall be amended from time to
time.
(g) "Holder's Counsel" shall mean a single counsel (if
any) designated by the holders of not less than 25% of the aggregate principal
amount of the Registrable Securities to represent them in connection with the
Registration Statement; provided, however, that, if more than one counsel is so
designated, the Holders' Counsel shall be the designee of the holders that are
holding the greater percentage of the Registrable Securities.
(h) The term "holder" shall mean, when used with respect
to any Security, the Holder (as defined in the Indenture) and, with respect to
any Common Stock, the record holder of such Common Stock.
(i) "Indenture" shall mean the Indenture, dated as of
August , 1997, between the Company and The Bank of New York, as Trustee, as
amended and supplemented from time to time in accordance with its terms.
(j) "Initial Questionnaire Deadline" shall have the
meaning specified in Section 3(c).
(k) The term "managing underwriter or managing
underwriters" shall mean the person or persons selected pursuant to Section
7(b) of this Agreement to manage an underwritten offering of Registrable
Securities.
(l) The term "person" shall have the meaning specified
in the Indenture.
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(m) "Prospectus" shall mean the prospectus (including any
preliminary prospectus and any final prospectus) included in any Registration
Statement, as amended or supplemented by any prospectus supplement with respect
to the terms of the offering of any portion of the Registrable Securities
covered by the Registration Statement and by all other amendments and
supplements to such prospectus, including all material incorporated by
reference in such prospectus and all documents filed after the date of such
prospectus by the Company under the Exchange Act and incorporated by reference
therein.
(n) "Registrable Securities" shall mean all or any
portion of the Securities issued under the Indenture and the shares of Common
Stock issuable upon conversion of such Securities; provided, however, that a
security ceases to be a Registrable Security when it is no longer a Restricted
Security.
(o) "Registration Expenses" shall have the meaning
assigned thereto in Section 4(c) of this Agreement.
(p) "Registration Statement" shall mean a "shelf"
registration statement filed under the Securities Act providing for the
registration of, and the sale on a continuous or delayed basis by the holders
of, all of the Registrable Securities (subject to Section 3(c) hereof) pursuant
to Rule 415 under the Securities Act and/or any similar rule that may be
adopted by the Commission, filed by the Company pursuant to the provisions of
Section 2 of this Agreement, including the Prospectus contained therein, any
amendments and supplements to such registration statement, including
post-effective amendments, and all exhibits and all materials incorporated by
reference in such registration statement.
(q) "Restricted Security" shall mean any Security or
share of Common Stock issuable upon conversion thereof unless or until (i) such
Security or the Common Stock issuable upon conversion thereof has been
effectively registered under the Securities Act and sold in a manner
contemplated by the Registration Statement or (ii) such Security or the Common
Stock issuable upon conversion thereof has been transferred in compliance with
Rule 144 under the Securities Act (or any successor provision thereto).
(r) "Rules and Regulations" shall mean the published
rules and regulations of the Commission promulgated under the Securities Act or
the Exchange Act, as in effect at any relevant time.
(s) "Securities" shall mean the Company's 7% Convertible
Subordinated Notes due August 1, 2004, to be issued pursuant to the Indenture
and sold pursuant to the Purchase Agreement and the Common Stock issuable upon
conversion thereof.
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(t) "Securities Act" shall mean the Securities Act of
1933, or any successor thereto, as the same shall be amended from time to time.
(u) "Selling Securityholder's Questionnaire" shall have
the meaning assigned thereto in Section 3(c) of this Agreement.
(v) "Specified Registrable Securities" shall have the
meaning assigned thereto in Section 3(c) of this Agreement.
(w) "Trust Indenture Act" shall mean the Trust Indenture
Act of 1939, or any successor thereto, and the rules, regulations and forms
promulgated thereunder, all as the same shall be amended from time to time.
(x) The term "underwriter" shall mean any underwriter of
an underwritten offering of Registrable Securities pursuant to Section 7(b) of
this Agreement.
(y) Wherever there is a reference in this Agreement to a
percentage of the "principal amount" of the Registrable Securities or to a
percentage of Registrable Securities, Common Stock shall be treated as
representing the principal amount of Securities which was surrendered for
conversion in order to receive such number of shares of Common Stock.
The filing of a document or report under the Exchange Act that
is incorporated by reference into the Registration Statement shall not be
deemed to be an amendment or supplement of the Registration Statement or the
filing of a Registration Statement or Prospectus (notwithstanding any
undertaking in the Registration Statement that may provide to the contrary) for
purposes of any provision of this Agreement that may give any person (i) a
right to review, or receive a copy, of any Registration Statement, Prospectus
or amendment or supplement thereto prior to the filing thereof, (ii) the right
to conduct any "due diligence" investigation that is triggered by the filing of
any Registration Statement, Prospectus or amendment or supplement or (iii) the
right to receive any notice that is triggered by any such filing.
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2. Registration Under the Securities Act.
(a) The Company shall, at its expense (subject to Section
4 hereof), within 90 calendar days following the Closing Date, file with the
Commission a Registration Statement with respect to the Registrable Securities
and thereafter shall use its reasonable best efforts to cause such Registration
Statement to be declared effective by the Commission under the Securities Act
within 90 calendar days after the date of the filing of such Registration
Statement.
(b) Subject to Section 2(e) hereof, the Company shall use
its reasonable best efforts to keep the Registration Statement continuously
effective under the Securities Act and usable by holders for resales of
Registrable Securities for a period of two years from the Effective Time or
such shorter period that will terminate upon the earlier of the following: (i)
when there are no outstanding Registrable Securities and (ii) when, in the
written opinion of independent counsel to the Company, all outstanding
Registrable Securities held by persons that are not "affiliates" of the Company
(as defined in Rule 144(a)(1) under the Securities Act) may be resold without
registration under the Securities Act pursuant to Rule 144(k) under the
Securities Act (or any successor provision thereto) and the Company has removed
all legends from the Registrable Securities restricting the transfer thereof
(other than any Registrable Security held by an affiliate). The Company shall
use its reasonable best efforts to file such amendments or supplements to the
Registration Statement as are necessary or appropriate to discharge its
obligations under the preceding sentence.
(c) If at any time, the Securities, pursuant to Article
Twelve of Indenture, are convertible into securities other than the Company's
common stock, par value $.01 per share, together with the related Preferred
Share Purchase Rights of the Company issuable with such shares, the Company
shall, or shall cause any successor under the Indenture to, cause such
securities to be included in the Registration Statement no later than the date
on which the Securities may then be convertible into such securities.
(d) The parties hereto agree that, notwithstanding the
provisions of Section 9(b), the remedies provided for in Section 10.12 of the
Indenture shall constitute the sole and exclusive remedy for any breach by the
Company of its obligations under Section 2(a) hereof.
(e) Notwithstanding anything to the contrary contained
herein (including, without limitation, Section 2(b) hereof), the fact that any
action or inaction on the part of the Company relating to the conduct of its
business or the occurrence of any other event causes the Registration Statement
not to be usable pursuant to Section 3(f) hereof or not to be effective shall
not constitute a breach of this Agreement by the Company, provided that the
foregoing shall not limit (a) the Company's obligation to
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reasonably promptly thereafter take the actions required by Sections 3(d)(v)
and/or 3(d)(xii) hereof, (b) any obligation that the Company may have to pay
additional interest pursuant to Section 10.12 of the Indenture or (c) the
Company's obligations under Section 3(d)(xv) hereof.
3. Registration Procedures.
(a) Prior to or at the Effective Time the Company shall
qualify the Indenture under the Trust Indenture Act.
(b) In the event that compliance with Section 3(a) hereof
involves the appointment of a new trustee under the Indenture, the Company
shall appoint a new trustee thereunder pursuant to the applicable provisions of
the Indenture.
(c) The Company shall include in the Registration
Statement as of the Effective Time all Registrable Securities which any holder
shall have elected (each, an "Electing Holder") to include in the Registration
Statement as specified in a completed questionnaire substantially in the form
attached hereto as Exhibit A (a "Selling Securityholder's Questionnaire"),
received by the Company on or prior to the date 85 calendar days after the
Closing Date (the "Initial Questionnaire Deadline"). No earlier than 45 days
after the Closing Date and no later than 60 days after the Closing Date the
Company, at its expense, shall mail to each Holder a Selling Securityholder
Questionnaire. As used herein, the term "Specified Registrable Securities"
shall mean all Registrable Securities that the Electing Holders have elected to
include in the Registration Statement as provided in the preceding sentence on
or prior to the Initial Questionnaire Deadline. Each person acquiring Specified
Registrable Securities from an Electing Holder after the date on which such
Electing Holder provided the Company its Selling Securityholder's Questionnaire
shall also be entitled to have such Specified Registrable Securities included
in the Registration Statement so long as such person provides the Company with
an updated Selling Securityholder's Questionnaire. Any such transferee shall
be entitled to have its Specified Registrable Securities included in the
Registration Statement (i) at the Effective Time, if the updated Selling
Securityholder's Questionnaire is received by the Company on or prior to the
date 10 calendar days prior to the Effective Time and (ii) in all other cases,
reasonably promptly after the Company receives the updated Selling
Securityholder's Questionnaire. In the case of any Specified Registrable
Securities which are not included in the Registration Statement at the
Effective Time and as to which an updated Selling Securityholder's
Questionnaire has been furnished to the Company, the Company shall include such
Registrable Securities in the Registration Statement reasonably promptly and in
connection therewith shall file such post-effective amendments to the
Registration
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Statement or supplements to the Prospectus as may be required by the Rules and
Regulations to permit the resale of such Specified Registrable Securities.
(d) In connection with the Company's obligations with
respect to the Registration Statement, the Company shall use its reasonable
best efforts to effect or cause the Registration Statement to permit the sale
of the Registrable Securities by the holders thereof in accordance with the
intended method or methods of distribution thereof described in the
Registration Statement; provided, however, that such method or methods of
distribution may take the form of an underwritten offering of the Registrable
Securities only as provided in Section 7 hereof. In connection therewith, the
Company shall:
(i) for a reasonable period prior to the filing of a
Registration Statement or Prospectus or any amendments or supplements
thereto, furnish to the Holders' counsel, if any, and the managing
underwriter or underwriters, if any, of Registrable Securities being
sold in an underwritten offering copies of all such documents proposed
to be filed, which documents will be subject to the review of such
counsel and managing underwriter or underwriters, and the Company will
not file any Registration Statement or amendment thereto or any
Prospectus or any supplement thereto to which such counsel or the
managing underwriter or underwriters, if any, shall reasonably object;
provided, that the Company may assume, for the purposes of this
subparagraph (i), that objections to the inclusion of information
specifically requested to be included in the Registration Statement or
other documents by the staff of the Commission, or in the opinion of
counsel to the Company required to be in the Registration Statement or
other documents, or specifically required by the Securities Act or the
Rules and Regulations, shall not be deemed to be reasonable;
(ii) for a reasonable period prior to the filing of the
Registration Statement and prior to the execution of any underwriting
or similar agreement, make available for inspection by Holders'
Counsel, any managing underwriter or underwriters of Registrable
Securities being sold in an underwritten offering, and not more than
one accountant or firm of accountants retained by the selling holders
or such managing underwriter, all such financial and other records,
pertinent corporate documents and properties of the Company as would
customarily be necessary or advisable for the purposes of a "due
diligence" investigation of the Company's affairs; cause the Company's
officers, directors, employees and agents, including independent
public accountants and counsel, to supply all information reasonably
requested by any such Holder's Counsel, underwriter or accountant in
connection with such Registration Statement, provided that any
records, information or documents that are designated by the Company
in writing as confidential shall be kept confidential by such persons
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unless disclosure of such records, information or documents is
required by court or administrative order; and furnish to Holders'
Counsel and each managing underwriter, if any, copies of all documents
filed with Commission and incorporated by reference in the
Registration Statement;
(iii) prepare and file with the Commission such amendments
and post-effective amendments to the Registration Statement, and such
supplements to the Prospectus, as may be required by the Rules and
Regulations or the instructions applicable to the registration form
utilized by the Company or by the Securities Act or otherwise
necessary to keep the Registration Statement effective for the period
specified in Section 2(b) and cause the Prospectus as so supplemented
to be filed pursuant to Rule 424 under the Securities Act; and comply
with the provisions of the Securities Act with respect to the
disposition of all Registrable Securities covered by such Registration
Statement during the period specified in Section 2(b) in accordance
with the intended methods of disposition by the sellers thereof set
forth in such Registration Statement or supplement to the Prospectus;
(iv) notify the selling holders of Registrable Securities,
Holders' Counsel, if any, and the managing underwriter or
underwriters, if any, promptly, and confirm such advice in writing,
(A) when the Registration Statement, any
pre-effective amendment thereto, the Prospectus or any
prospectus supplement or post-effective amendment to the
Registration Statement has been filed, and, with respect to
the Registration Statement or any post-effective amendment,
when the same has become effective,
(B) with respect to Holders' Counsel
only, of any comments by the Commission or the "Blue Sky" or
securities commissioner or regulator of any state with respect
to the Registration Statement, the Prospectus or any
prospectus supplement or any request by the Commission or any
such securities commissioner or regulator for amendments or
supplements to the Registration Statement, the Prospectus or
any prospectus supplement or for additional information,
(C) of the issuance by the Commission of
any stop order suspending the effectiveness of the
Registration Statement or the initiation or threatening of any
proceedings for that purpose,
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(D) if at any time the representations
and warranties of the Company contemplated by subparagraph
(xiv) below or Section 5 hereof cease to be true and correct,
(E) of the receipt by the Company of any
notification with respect to the suspension of the
qualification of the Registrable Securities for sale under the
securities or "Blue Sky" laws of any jurisdiction or the
initiation or threatening of any proceeding for such purpose,
and
(F) if the Company obtains knowledge, of
the happening of any event or the existence of any fact that
would require the making of any changes in or amendments or
supplements to the Registration Statement, any post-effective
amendment thereto, the Prospectus, any prospectus supplement
or any document incorporated therein by reference so that, as
of such date, the Registration Statement and the Prospectus do
not contain any 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 the light of the circumstances under which they
were made) not misleading;
(v) use its reasonable best efforts to obtain the
withdrawal of any order suspending the effectiveness of the
Registration Statement as expeditiously as reasonably possible;
(vi) subject to section 7(d) hereof, if requested by any
managing underwriter or underwriters or any holder of Registrable
Securities being sold pursuant to an underwritten offering, reasonably
promptly incorporate in a prospectus supplement or post-effective
amendment to the Registration Statement such information as is
required by the applicable Rules and Regulations and as the managing
underwriter or underwriters or such holder specifies should be
included therein and to which the Company does not reasonably object
relating to the terms of the sale of the Registrable Securities,
including without limitation, information with respect to the
principal amount or number of shares of Registrable Securities being
sold by such holder to any underwriter or underwriters, the name and
description of such holder or underwriter, the offering price of such
Registrable Securities and any discount, commission or other
compensation payable in respect thereof, the purchase price being paid
therefor by such underwriter or underwriters and with respect to any
other terms of the underwritten offering (including whether such
underwriting commitment is on a firm commitment or best efforts basis)
of the Registrable Securities to be sold in such offering; and make
all required fillings of such prospectus supplement or post-effective
amendment reasonably promptly after
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they are notified of the matters to be incorporated in such prospectus
supplement or post-effective amendment;
(vii) furnish to each selling holder of Registrable
Securities included within the coverage of the Registration Statement
and each managing underwriter, if any, without charge, an executed
copy of the Registration Statement, each amendment and supplement
thereto (in each case including, if the holder so requests in writing,
all exhibits thereto and documents incorporated by reference therein)
and such number of copies thereof as such persons may reasonably
request in order to facilitate the offering and disposition of the
Registrable Securities;
(viii) deliver to each selling holder of Registrable
Securities included within the coverage of the Registration Statement
and each managing underwriter, if any, without charge, as many copies
of the Prospectus (including each preliminary prospectus) and any
amendment or supplement thereto as such persons may reasonably request
in order to facilitate the offering and disposition of the Registrable
Securities and to permit any of such persons to satisfy the prospectus
delivery requirements of the Securities Act; and the Company hereby
consents (except during the continuance of any fact or event described
in Section 3(d)(iv)(F)) to the use of the Prospectus or any amendment
or supplement thereto by each of the selling holders of Registrable
Securities and by each underwriter thereof, if any, in connection with
the offering and sale of the Registrable Securities covered by the
Prospectus or any amendment or supplement thereto during the period
specified in Section 2(b);
(ix) prior to any public offering of Registrable
Securities, use reasonable best efforts to, and in the case of any
underwritten offering of Registrable Securities pursuant to Section 7,
cooperate with counsel to the managing underwriter or underwriters to,
(A) register or qualify the Registrable Securities covered by the
Registration Statement for offer and sale under the securities or
"Blue Sky" laws of such jurisdictions as any selling holder or
managing underwriter reasonably shall request, (B) keep such
registrations or qualifications in effect and comply with such laws so
as to permit the continuance of offers, sales and dealings therein in
such jurisdictions for so long as may be necessary to enable any such
holder or underwriter to complete its distribution of Registrable
Securities pursuant to the Registration Statement and (C) take any and
all other actions as may be reasonably necessary or advisable to
enable the disposition in such jurisdictions of such Registrable
Securities; provided, however, that the Company shall not be required
for any such purpose to qualify as a foreign corporation in any
jurisdiction wherein it would not otherwise be
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required to qualify but for the requirements of this Section 3(d)(ix)
or consent to general service of process in any such jurisdiction;
(x) subject to receipt of assurances customary in
transactions of this kind, cooperate with the selling holders of
Registrable Securities and the managing underwriter or underwriters,
if any, to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold, which
certificates shall not bear any restrictive legends and which shall be
in the form required by any securities exchange upon which any
Registrable Securities are listed; and enable such Registrable
Securities to be in such denominations and registered in such names as
the selling holder or the managing underwriter or underwriters, if
any, may request at least two business days prior to any delivery of
Registrable Securities;
(xi) comply with all applicable laws and the regulations
of such other governmental agencies or authorities, federal, state or
local which may at any time be applicable to the Company, the
compliance with which may be necessary to enable the Company to comply
with its obligations hereunder;
(xii) upon the happening of any event or the existence of
any fact contemplated by subparagraph (iv)(F) above, reasonably
promptly prepare a post-effective amendment or supplement to the
Registration Statement or the related Prospectus or any document
incorporated therein by reference or file any other required document
so that the Prospectus, as thereafter delivered to the purchasers of
the Registrable Securities, will not contain an untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading;
(xiii) use reasonable best efforts to cause the shares of
Common Stock constituting Registrable Securities covered by the
Registration Statement to qualify for quotation on the Nasdaq National
Market or, if the Common Stock is not then quoted on the Nasdaq
National Market, to list such shares on each securities exchange on
which outstanding Common Stock of the Company is then listed, if any;
(xiv) Take the following actions:
(A) in connection with the Registration
Statement, make such representations and warranties to the
holders of the Registrable Securities to be included therein
in form, substance and scope as are customary in connection
with shelf registrations of the type contemplated by this
Agreement (such representations and warranties to be agreed
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upon by the Holders' Counsel and the Company, such agreement
not to be unreasonably withheld) and, in connection with any
underwritten offering pursuant to Section 7, make such
representations and warranties to the holders of the
Registrable Securities to be sold therein and the underwriter
or underwriters, if any, in form, substance and scope as are
customarily made in connection with primary underwritten
offerings of equity or convertible debt securities;
(B) in connection with the Registration
Statement, cause to be delivered to the holders of the
Registrable Securities to be included therein such opinions of
counsel in form, substance and scope (and at such times) as
are customary in connection with shelf registrations of the
type contemplated by this Agreement (such opinions to be
agreed upon by Holders' Counsel and the Company, such
agreement not to be unreasonably withheld) and, in the case of
an underwritten offering pursuant to Section 7, such other
opinions of counsel customarily covered in opinions requested
in primary underwritten offerings of equity and convertible
debt securities;
(C) cause to be delivered letters from
the Company's independent certified public accountants
addressed to each selling holder and each underwriter, if any,
covering the matters customarily covered in connection with
primary underwritten public offerings of equity or convertible
debt securities (such letters to be delivered at such times as
are customary in connection with shelf registrations of the
type contemplated by this Agreement (as agreed to by Holders'
Counsel and the Company, such agreement not to be unreasonably
withheld) and, in the case of an underwritten offering
pursuant to Section 7, at the time of the signing of the
underwriting or purchase agreement and at the time of any
closing of such underwritten offering);
(D) if a purchase agreement is entered
into, cause the same to set forth in full the indemnification
provisions and procedures of Section 6 hereof with respect to
all parties to be indemnified pursuant to said Section; and
(E) in the case of an underwritten
offering, (i) enter into customary agreements required in
connection therewith (including a customary purchase
agreement) and (ii) deliver such customary documents and
certificates as may be requested by any managing underwriter
or underwriters, if any, to evidence the accuracy of the
representations contemplated by clause (A) above and
compliance
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with any customary conditions contained in the purchase
agreement or other agreement entered into by the Company in
connection with such offering.
(xv) otherwise use its reasonable best efforts to comply
with all applicable Rules and Regulations, and make generally
available to its security holders earnings statements satisfying the
provisions of Section 11(a) of the Securities Act no later than 45
days after the end of any 12-month period (or 90 days, if such period
is a fiscal year) (A) commencing at the end of any fiscal quarter in
which the Registrable Securities are sold in an underwritten offering,
or, if not sold in such an offering, (B) commencing with the first
month of the Company's first fiscal quarter commencing after the
effective date of the Registration Statement, which statements shall
cover said 12-month periods;
(xvi) notify in writing each holder of Registrable
Securities of any proposal by the Company to amend or waive any
provision of this Agreement pursuant to Section 9(h) hereof and of any
amendment or waiver effected pursuant thereto, each of which notices
shall contain the text of the amendment or waiver proposed or
effected, as the case may be; and
(xvii) in the case of an underwritten offering, in the event
that any broker-dealer registered under the Exchange Act shall be an
"Affiliate" (as defined in Schedule E to the By-Laws of the National
Association of Securities Dealers, Inc. ("NASD")) of the Company or
has a "Conflict of Interest" (as defined in such Schedule) 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 Schedule) 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 in complying
with the requirements of such Schedule, including, without limitation,
by (A) engaging a "qualified independent underwriter" (as defined in
such Schedule) to participate in the preparation of the 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 6 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 Fair Practice of the NASD.
(e) The Company may require each selling holder of
Registrable Securities as to which any registration is being effected to
furnish to the Company the information regarding the distribution of such
Registrable Securities required by the
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Questionnaire or otherwise reasonably requested by the Company. Each such
holder agrees, by the acquisition of Registrable Securities, to notify the
Company as promptly as practicable of any inaccuracy or change in information
previously furnished by such 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 holder or such holder's intended method of distribution of such
Registrable Securities or omits to state any material fact regarding such
holder or such holder's intended method of distribution of such Registrable
Securities necessary to make the statements therein, in light of the
circumstances then existing, not misleading and promptly to furnish to the
Company 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 holder or the distribution of such Registrable
Securities, an untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in light of the circumstances
then existing, not misleading.
(f) Each holder of Registrable Securities agrees by
acquisition of such Registrable Securities that, upon receipt of any notice
from the Company of the happening of any event of the kind described in Section
3(d)(iv)(F) hereof, such holder will forthwith discontinue disposition of
Registrable Securities pursuant to the Registration Statement until such
holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 3(d)(xii) hereof, or until it is advised in writing by
the Company that the use of the Prospectus may be resumed, and has received
copies of any additional or supplemental filings which are incorporated by
reference in the Prospectus, and, if so directed by the Company, such holder
will 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. In
the event the Company shall give any such notice, the reference to "two years"
in the first sentence of Section 2(b) shall be deemed revised to include a
number of days equal to the number of days during the period from and including
the date of the giving of such notice to and including the date when each
selling holder of Registrable Securities covered by such Registration Statement
either receives the copies of the supplemented or amended prospectus
contemplated by Section 3(d)(xii) hereof or is advised in writing by the
Company that the use of the Prospectus may be resumed.
4. Registration Expenses.
(a) Subject to Section 4(b) hereof, the Company shall pay
all expenses (including, without limitation, Registration Expenses) in
connection with performing its obligations under Sections 2 and 3 hereof. In
addition, the Company shall pay the
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reasonable fees and disbursements of the Holders' Counsel; provided however
that the Company shall not be required to pay more than $85,000 in the
aggregate in respect of such fees and disbursements.
(b) In the event of an underwritten offering pursuant to
Section 7 hereof (i) the holders participating in such offering shall be
responsible for all agency fees and commissions and underwriting discounts and
commissions, (ii) the Company shall pay the expenses referred to in clause (f)
of the definition of Registration Expenses and up to $200,000 of other
Registration Expenses relating to such underwritten offering and (ii) the
holders participating in such offering shall bear all Registration Expenses
relating to such underwritten offering in excess of $200,000 and shall
reimburse (on a pro rata basis based on the principal amount of the
Registration Securities included in the underwritten offering) the Company for
any such excess expenses reasonably incurred by the Company upon request. To
the extent that any Registration Expenses payable by the Company are incurred,
assumed or paid by any holder, the Company shall reimburse such holder upon
request.
(c) As used herein, Registration Expenses means the
following expenses relating to the Registration Statement and the sale of the
Registrable Securities relating thereto: (a) all Commission and any NASD
registration and filing fees and expenses, (b) all fees and expenses in
connection with the registration or qualification of the Registrable Securities
for offering and sale under the State securities and blue sky laws referred to
in Section 3(d)(ix) hereof and, in the case of an underwritten offering,
determination of their eligibility for investment under the laws of such
jurisdictions as the managing underwriter or underwriters, if any, or the
holders of such Registrable Securities may designate, including reasonable fees
and disbursements, if any, of counsel for the underwriters in connection with
such registrations or qualifications and determination, (c) all expenses
relating to the preparation, printing, distribution and reproduction of the
Registration Statement required to be filed hereunder, each prospectus included
therein or prepared for distribution pursuant hereto, each amendment or
supplement to the foregoing, the expenses of preparing the Registrable
Securities for delivery and the expenses of printing or producing any Purchase
Agreement(s), agreement(s) among underwriters and "Blue Sky" memoranda, any
selling agreements and all other documents in connection with the offering,
sale or delivery of Registrable Securities to be disposed of, (d) messenger,
telephone and delivery expenses of the Company, (e) fees and expenses of any
Trustee under the Indenture, any Transfer Agent and Registrar with respect to
the Registrable Securities and any escrow agent or custodian, (f) internal
expenses (including, without limitation, all salaries and expenses of the
Company's officers and employees performing legal or accounting duties), (g)
fees, disbursements and expenses of counsel and independent certified public
accountants of the Company (including the expenses of any opinions or "cold
comfort" letters required by or incident
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to such performance and compliance), (h) fees, disbursements and expenses of
any "qualified independent underwriter" engaged pursuant to Section 3(d)(xvii)
hereof for acting in such capacity, (i) fees, expenses and disbursements of any
other persons retained by the Company, including special experts, retained by
the Company in connection with such registration, (j) all fees and expenses
incurred in connection with the qualification of the shares of Common Stock
constituting Registrable Securities for quotation on the Nasdaq National
Market, or the listing of such shares on any securities exchange, pursuant to
Section 3(d)(xiii) (collectively, the "Registration Expenses") and (k) in the
case of an underwritten offering pursuant to Section 7 hereof, the fees,
disbursements and expenses of a single counsel retained by the holders to
represent them in connection with such offering (the selection of such counsel
by such holders to be made in the same manner as is provided in the definition
of the terms "Holders' Counsel").
5. Representations and Warranties.
The Company represents and warrants to, and agrees with, the
Purchasers and each of the holders from time to time of Registrable Securities
that:
(a) Each Registration Statement and each Prospectus
contained therein or furnished pursuant to Sections 3(d)(vii) and 3(d)(viii)
hereof and any further amendments or supplements to any such Registration
Statement or Prospectus, when it becomes effective or is filed with the
Commission, as the case may be, and, in the case of an underwritten offering of
Registrable Securities, at the time of the closing under the Purchase Agreement
relating thereto, will conform in all material respects to the requirements of
the Securities Act and will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; and at all times subsequent to the
Effective Time when a prospectus would be required to be delivered under the
Securities Act, other than from (i) such time as a notice has been given to
holders of Registrable Securities pursuant to Section 3(d)(iv)(F) hereof until
(ii) such time as the Company furnishes an amended or supplemented prospectus
pursuant to Section 3(d)(xii) hereof, the Registration Statement, and the
Prospectus (including any summary prospectus) contained therein or furnished
pursuant to Section 3(d)(vii) or 3(d)(viii) hereof, as then amended or
supplemented, will conform in all material respects to the requirements of the
Securities Act and will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances then existing, not
misleading; provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in conformity
with information set
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forth in a Selling Securityholder's Questionnaire (or any other written
information) furnished to the Company by a holder of Registrable Securities.
(b) Any documents incorporated by reference in any
Prospectus referred to in Section 5(a) hereof, when they become or became
effective or are or were filed with the Commission, as the case may be, will
conform or conformed in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and none of such documents
will contain or contained an untrue statement of a material fact or will omit
or omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading.
(c) The compliance by the Company with all of the
provisions of this Agreement and the consummation of the transactions herein
contemplated will not conflict with or result in a breach of any of the terms
or provisions of, or constitute a default under, any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to which the Company
or any subsidiary thereof is a party or by which the Company or any subsidiary
thereof is bound or to which any of the property or assets of the Company or
any subsidiary thereof is subject, nor will such action result in any violation
of the provisions of the Certificate of Incorporation, as amended and restated,
or the By-Laws, as amended, of the Company or any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction over
the Company or any subsidiary thereof or any of their properties; and no
consent, approval, authorization, order, registration or qualification of or
with any such court or governmental agency or body is required for the
consummation by the Company of the transactions contemplated by this Agreement,
except the registration under the Securities Act of the Registrable Securities,
the qualification of the Indenture as contemplated by Section 3(a) hereof, and
such consents, approvals, authorizations, registrations or qualifications as
may be required under State securities or "Blue Sky" laws in connection with
the offering and distribution of the Registrable Securities.
(d) This Agreement has been duly authorized, executed and
delivered by the Company and constitutes a valid and legally binding obligation
of the Company enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors' rights and to
general equity principles.
6. Indemnification.
(a) Indemnification by the Company. Upon the
registration of the Registrable Securities pursuant to Section 2 hereof, and in
consideration of the agreements of the Purchasers contained herein and in the
Purchase Agreement, and
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as an inducement to the Purchasers to enter into such Agreements, the Company
shall, and it hereby agrees to, indemnify and hold harmless each of the holders
of Registrable Securities to be included in such registration, each
underwriter, broker, dealer or other selling agent with respect to the
Registrable Securities and each of their respective officers, directors,
employees and agents and each person who controls such holder or underwriter,
broker, dealer or other selling agent within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act (each such person being
sometimes referred to as an "Indemnified Person") against any losses, claims,
damages or liabilities, joint or several, to which such Indemnified Person may
become subject under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a material
fact contained in any Registration Statement under which such Registrable
Securities were registered under the Securities Act, or any Prospectus
contained therein or furnished by the Company to any Indemnified Person, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and the
Company shall, and it hereby agrees to, reimburse such Indemnified Person for
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such action or claim; provided, however, that
the Company shall not be liable to any such Indemnified Person in any such case
to the extent that any such loss, claim, damage or liability arises out of or
is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in such Registration Statement or Prospectus, or
amendment or supplement, in reliance upon and in conformity with any written
information (including without limitation, any Selling Securityholder's
Questionnaire) furnished to the Company by such Indemnified Person expressly
for use therein.
(b) Indemnification by the Holders and any Agents and
Underwriters. The Company may require, as a condition to including any
Registrable Securities in any Registration Statement filed pursuant to this
Agreement and to entering into any Purchase 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 Purchase Agreement, severally and not jointly, to (i)
indemnify and hold harmless the Company, its directors, officers who sign any
Registration Statement and each person, if any, who controls the Company within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act, against any losses, claims, damages or liabilities to which the
Company or such other persons may become subject, under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in such Registration
Statement, or any Prospectus contained therein or
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furnished by the Company to any such holder or underwriter, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished in writing to the Company by such
person expressly for use therein (including, without limitation, any Selling
Securityholder's Questionnaire), and (ii) reimburse the Company for any legal
or other expenses reasonably incurred by the Company in connection with
investigating or defending any such action or claim;
(c) Notices of Claims, Etc. Promptly after receipt by an
indemnified party under subsection (a) or (b) above of written notice of the
commencement of any action, such indemnified party shall, if a claim in respect
thereof is to be made against an indemnifying party pursuant to the
indemnification provisions of or contemplated by this Section 6, notify such
indemnifying party in writing of the commencement of such action; but the
omission so to notify the indemnifying party shall not relieve it from any
liability which it may have to any indemnified party other than under the
indemnification provisions of or contemplated by Section 6(a) or 6(b) hereof.
In case any such action shall be brought against any indemnified party and it
shall notify an indemnifying party of the commencement thereof, such
indemnifying party shall be entitled to participate therein and, to the extent
that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and, after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, such indemnifying party shall not be liable to such
indemnified party for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all liability
arising out of such action or claim and (ii) does not include a statement as
to, or an admission of, fault, culpability or a failure to act, by or on behalf
of any indemnified party. An indemnifying party will not be liable for any
settlement of any action or claim effected without its written consent (which
shall not be unreasonably withheld).
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(d) Contribution. Each party hereto agrees that, if for
any reason the indemnification provisions contemplated by Section 6(a) or
Section 6(b) are unavailable to or insufficient to hold harmless an indemnified
party in respect of any losses, claims, damages or liabilities (or actions in
respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party and the indemnified party in connection with the statements
or omissions which resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative fault of such indemnifying party and indemnified
party shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by such
indemnifying party or by such indemnified party, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The parties hereto agree that it would not be just
and equitable if contribution pursuant to this Section 6(d) were determined by
pro rata allocation (even if the holders or any agents or underwriters or all
of them were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to in this Section 6(d). The amount paid or payable by an indemnified party as
a result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above shall be deemed to include any legal or other fees
or expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The holders' and any
underwriters' obligations in this Section 6(d) to contribute shall be several
in proportion to the percentage of principal amount of Registrable Securities
registered or underwritten, as the case may be, by them and not joint.
(e) Notwithstanding any other provision of this Section
6, in no event will any (i) holder be required to undertake liability to any
person under this Section 6 for an aggregate amount in excess of the dollar
amount of the proceeds to be received by such holder from the sale of such
holder's Registrable Securities (after deducting any fees, discounts and
commissions applicable thereto) pursuant to such registration and (ii)
underwriter be required to undertake liability to any person pursuant to
paragraph (d) of this Section 6 for any amount in excess of the amount by which
the total price at which the Registrable Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such underwriter shall have otherwise been required to pay by
reason of any untrue or alleged untrue statement or omission or alleged
omission.
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(f) The obligations of the Company under this Section 6
shall be in addition to any liability which the Company may otherwise have to
any Indemnified Person, including any liability to the Purchasers pursuant to
Section 8 of the Purchase Agreement. The obligation of each person that may be
required to indemnify the Company and the other persons specified in Section
6(b) shall be in addition to any liability which any such person may otherwise
have to the Company or such other indemnified persons.
7. Underwritten Offerings. (a) The holders of
Registrable Securities covered by the Registration Statement may sell such
Registrable Securities in an underwritten offering, provided that (i) the
holders of at least 33 1/3% in aggregate principal amount of the Registrable
Securities outstanding elect to participate in such an offering and (ii) the
Company shall not be obligated to cooperate with more than one underwritten
offering during the period specified in Section 2(b).
(b) If any of the Registrable Securities covered by the
Registration Statement are to be sold pursuant to an underwritten offering, the
managing underwriter or underwriters thereof shall be designated by the holders
of at least 50% in aggregate principal amount of the outstanding Registrable
Securities to be included in such offering, provided that such designated
managing underwriter or underwriters is or are reasonably acceptable to the
Company.
(c) Each holder of Registrable Securities hereby agrees
with each other such holder that no such holder may participate in any
underwritten offering hereunder unless such holder (i) agrees to sell such
holder's Registrable Securities on the basis provided in any underwriting
arrangements approved by the persons entitled hereunder to approve such
arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, purchase agreements and other documents reasonably
required under the terms of such underwriting arrangements.
(d) Notwithstanding the foregoing or the provisions of
Section 3(d)(vi) hereof, upon receipt of a request from a holder of Registrable
Securities or the managing underwriter or underwriters appointed pursuant to
Section 7 to prepare and file an amendment or supplement to the 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 120
days if the Company in good faith has a valid business reason for such delay.
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8. Rule 144.
The Company covenants to the holders of Registrable Securities
that to the extent it shall be required to do so under the Exchange Act, the
Company shall timely file the reports required to be filed by it under the
Exchange Act or the Securities Act (including, but not limited to, the reports
under Sections 13 and 15(d) of the Exchange Act referred to in subparagraph
(c)(1) of Rule 144 under the Securities Act) and the Rules and Regulations, and
shall take such further action as any holder of Registrable Securities 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 limitations of the exemption provided by Rule 144 under the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission. Upon the request of
any holder of Registrable Securities, the Company shall deliver to such holder
a written statement as to whether it has complied with such requirements.
9. Miscellaneous.
(a) No Inconsistent Agreements. The Company will not on
or after the date of this Agreement grant registration rights with respect to
Registrable Securities or any other securities, or enter into any agreement
with respect to its securities, which is inconsistent with the rights granted
to the holders of Registrable Securities in this Agreement or otherwise
conflicts with the provisions hereof. The Company is not currently a party to
any agreement with respect to any of its equity or debt securities granting any
registration rights to any person which agreement is inconsistent with the
rights granted to the holders of Registrable Securities in this Agreement or
otherwise conflicts with the provisions hereof.
(b) Specific Performance. The parties hereto acknowledge
that there may be no adequate remedy at law if any party fails to perform any
of its obligations hereunder and that each party may be irreparably harmed by
any such failure, and accordingly agree that each party, in addition to any
other remedy to which it may be entitled at law or in equity, shall be entitled
to compel specific performance of the obligations of any other party under this
Agreement in accordance with the terms and conditions of this Agreement, in any
court of the United States or any State thereof having jurisdiction.
(c) Notices. All notices, requests, claims, demands,
waivers and other communications hereunder shall be given in the manner
provided for in the Indenture; provided, however, that the foregoing items
shall be deemed effectively given to a
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holder for all purposes of this Agreement when delivered to the address for
notices specified in the Selling Securityholder's Questionnaire delivered by
such holder.
(d) Parties in Interest. All the terms and provisions of
this Agreement shall be binding upon, shall inure to the benefit of and shall
be enforceable by the respective successors and assigns of the parties hereto.
In the event that any transferee of any holder of Registrable Securities shall
acquire Registrable Securities, in any manner, whether by gift, bequest,
purchase, operation of law or otherwise, such transferee shall, without any
further writing or action of any kind, be deemed a party hereto for all
purposes and such Registrable Securities shall be held subject to all of the
terms of this Agreement, and by taking and holding such Registrable Securities
such transferee shall be entitled to receive the benefits of and be
conclusively deemed to have agreed to be bound by and to perform all of the
terms and provisions of this Agreement. If the Company shall so request, any
such successor, assign or transferee shall agree in writing to acquire and hold
the Registrable Securities subject to all of the terms hereof.
(e) 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.
(f) Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York.
(g) Headings. The descriptive headings of the several
Sections and paragraphs of this Agreement are inserted for convenience only, do
not constitute a part of this Agreement and shall not affect in any way the
meaning or interpretation of this Agreement.
(h) Amendments and Waivers. This Agreement may be
amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively) only by a written instrument duly executed by the Company and
the holders of at least 66 2/3% of the principal amount of the Registrable
Securities at the time outstanding. Each holder of any Registrable Securities
at the time or thereafter outstanding shall be bound by any amendment or waiver
effected pursuant to this Section 9(h), whether or not any notice,
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writing or marking indicating such amendment or waiver appears on such
Registrable Securities or is delivered to such holder.
(i) Inspection. For so long as this Agreement shall be
in effect, this Agreement and a complete list of the names and addresses of all
the holders of Registrable Securities shall be made available for inspection
and copying on any business day by any holder of Registrable Securities at the
offices of the Company at the address set forth in the Indenture.
(j) Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be duly executed as of the date first written above.
DSC COMMUNICATIONS CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President and
Chief Financial Officer
XXXXXXX, XXXXX & CO.
NATIONSBANC CAPITAL MARKETS. INC.
By: XXXXXXX, SACHS & CO.
By: /s/ Xxxxxxx, Xxxxx & Co.
---------------------------------
(Xxxxxxx, Sachs & Co.)
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Exhibit A
NAME:
---------------------
DSC COMMUNICATIONS CORPORATION
Selling Securityholder's Questionnaire
IN CONNECTION WITH THE PROPOSED REGISTRATION
OF SECURITIES OF DSC COMMUNICATIONS CORPORATION
Reference is made to the Registration Rights Agreement (the
"Registration Rights Agreement") dated as of August 7, 1997 between DSC
Communications Corporation (the "Company") and the Purchasers named therein.
All capitalized terms not otherwise defined herein shall have the meanings
given to them in the Registration Rights Agreement. Pursuant to the
Registration Rights Agreement, the Company agreed to file a Registration
Statement under the Securities Act of 1933, as amended (the "Securities Act"),
for the registration and sale under Rule 415 under the Securities Act of the
Company's 7% Convertible Subordinated Notes due August 1, 2004 (the "Notes")
and the shares of Common Stock of the Company issuable upon conversion of the
Notes. The undersigned beneficial owner (the "Selling Securityholder") of
Registrable Securities hereby elects pursuant to Section 3(c) of the
Registration Rights Agreement to include in the Registration Statement the
Registrable Securities beneficially owned by it and listed in Item 4 below
(unless otherwise specified under Item 4). The inclusion in the Registration
Statement of the Registrable Securities owned by the Selling Securityholder
shall be made in accordance with and shall be subject to the provisions of the
Registration Rights Agreement. The Selling Securityholder is providing this
Questionnaire to provide the Company with information necessary for the
inclusion in the Registration Statement of the Registrable Securities
beneficially owned by the Selling Securityholder.
(i) Complete Name of Selling Securityholder:
(ii) Address for Notices:
28
(iii) Contact Person:
Name:
Address:
Tel.:
Fax.:
(iv) Registrable Securities Beneficially Owned by the Selling
Securityholder:
EXCEPT AS SET FORTH BELOW, THE UNDERSIGNED SELLING SECURITYHOLDER DOES
NOT OWN ANY NOTES OR SHARES OF COMMON STOCK HERETOFORE ISSUED UPON
CONVERSION OF ANY NOTE.
Principal Amount of Notes:
Shares of Common Stock Heretofore Issued Upon Conversion of Notes:
(v) Other Shares of Common Stock or Other Securities of the Company Owned
by the Selling Securityholder:
EXCEPT AS SET FORTH BELOW, AND UNDER ITEM 4, THE UNDERSIGNED SELLING
SECURITYHOLDER DOES NOT OWN ANY SHARES OF COMMON STOCK OR ANY OTHER
SECURITIES OF THE COMPANY.
(vi) Except as set forth below, the Selling Securityholder has held no
position or office or has had any other material relationship with the
Company (or predecessor or affiliate of the Company) during the past
three years.
(vii) The Selling Securityholder acknowledges that it understands its
obligation to comply with the provisions of the Securities Exchange
Act of 1934, and the rules
A-2
29
thereunder, relating to stock manipulation, particularly Rule 10b-6
thereunder, in connection with the offering of its Registrable
Securities covered by the Registration Statement. The Selling
Securityholder agrees that neither it nor any person acting on its
behalf, will bid for, or purchase any securities of the Company in
violation of such provisions, so long as the Registrable Securities
beneficially owned by it are being offered pursuant to the
Registration Statement.
By its signature below, the Selling Securityholder consents to the disclosure
of the information contained herein to the extent required by the federal and
state securities laws and the rules of the Commission. The Selling
Securityholder understands that the information that is being furnished to the
Company in this Questionnaire will be relied upon by the Company in connection
with the preparation of the Registration Statement. The Selling Securityholder
agrees to promptly notify the Company of any changes in such information which
may occur subsequent to the date hereof.
Dated: , 199
---------- -- ---------------------------
Selling Securityholder
By:
-----------------------------
Name:
Title:
A-3
