EXHIBIT 4.6
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "AGREEMENT") is
made and entered into as of August 6, 2001 by and among Lucent Technologies
Inc., a Delaware corporation (the "COMPANY"), Xxxxxxx Xxxxx Xxxxxx Inc.
("XXXXXXX XXXXX BARNEY"), Xxxxxx Xxxxxxx & Co. Incorporated ("XXXXXX
XXXXXXX"), Bear, Xxxxxxx & Co., X.X. Xxxxxx Securities Inc., Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated and XX Xxxxx Securities Corporation
(collectively, the "INITIAL PURCHASERS"), for whom Xxxxxxx Xxxxx Xxxxxx Inc.
and Xxxxxx Xxxxxxx & Co. Incorporated are acting as representatives (the
"REPRESENTATIVES").
This Agreement is made pursuant to the Purchase Agreement dated August
1, 2001, among the Company and the Initial Purchasers (the "PURCHASE
AGREEMENT"), which provides for the sale by the Company to the Initial
Purchasers of up to 1,885,000 shares (including up to 135,000 shares that the
Company has granted the Initial Purchasers an option to purchase pursuant to the
Purchase Agreement) of its 8.00% Redeemable Convertible Preferred Stock, par
value $1.00 per share and initial liquidation preference $1,000.00 (the
"PREFERRED STOCK"). The Preferred Stock will be convertible into shares of
Common Stock, par value $.01 per share, of the Company (the "COMMON STOCK") at
the conversion price set forth in the Final Memorandum (as defined in the
Purchase Agreement), and exchangeable at the Company's option for convertible
subordinated debentures (the "CONVERTIBLE DEBENTURES") to be issued, if and when
issued, pursuant to an indenture a form of which is attached to the Certificate
of Designations of the Preferred Stock. For purposes of this Agreement, the term
"SECURITIES" refers to the Preferred Stock, any Convertible Debentures issued in
exchange for Preferred Stock and all shares of Common Stock issued on conversion
thereof.
In order to induce the Initial Purchasers to enter into the Purchase
Agreement, the Company has agreed to provide to the Initial Purchasers and their
direct and indirect transferees the registration rights with respect to the
Securities set forth in this Agreement. The execution of this Agreement is a
condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions.
As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"ADDITIONAL DIVIDENDS" shall have the meaning set forth in the
Certificate of Designations.
"ADDITIONAL INTEREST" shall have the meaning set forth in the
Indenture.
"1933 ACT" shall mean the Securities Act of 1933, as amended from time
to time.
"1934 ACT" shall mean the Securities Exchange Act of 1934, as amended
from time to time.
"CERTIFICATE OF DESIGNATIONS" shall mean the Certificate of
Designations relating to the Preferred Stock, which sets forth the powers,
preferences and rights, and the qualifications, limitations and restrictions of
the Preferred Stock.
"CLOSING DATE" shall mean the Closing Date as defined in the Purchase
Agreement.
"COMMON STOCK" shall have the meaning set forth in the preamble.
"COMPANY" shall have the meaning set forth in the preamble and shall
also include the Company's successors.
"CONVERTIBLE DEBENTURES" shall have the meaning set forth in the
preamble.
"HOLDERS" shall mean the Initial Purchasers, for so long as they own
any Registrable Securities (except that for purposes of Section 4 hereof, the
Initial Purchasers shall always be considered Holders), and each of their
respective successors, assigns and direct and indirect transferees who become
registered owners of Registrable Securities.
"INITIAL PURCHASERS" shall have the meaning set forth in the preamble.
"INDENTURE" shall mean the Indenture relating to the Company's 8.00%
Convertible Subordinated Debentures due 2031, issuable upon exchange for the
Preferred Stock, which sets for the powers, preferences, rights, qualifications,
limitations and restrictions of the Convertible Debentures.
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"MAJORITY HOLDERS" shall mean the Holders of a majority of the
aggregate principal amount of outstanding Registrable Securities; provided that,
for purposes of Section 5(b), whenever the consent or approval of Holders of a
specified percentage of Registrable Securities is required hereunder,
Registrable Securities held by the Company or any of its affiliates (as such
term is defined in Rule 405 under the 0000 Xxx) (other than the Initial
Purchasers or subsequent Holders of Registrable Securities if such subsequent
holders are deemed to be such affiliates solely by reason of their holding such
Registrable Securities) shall not be counted in determining whether such consent
or approval was given by the Holders of such required percentage or amount.
"PERSON" shall mean an individual, partnership, limited liability
company, corporation, trust or unincorporated organization, or a government or
agency or political subdivision thereof.
"PREFERRED STOCK" shall have the meaning set forth in the preamble.
"PURCHASE AGREEMENT" shall have the meaning set forth in the preamble.
"PROSPECTUS" shall mean the prospectus included in a Shelf Registration
Statement, including any preliminary prospectus, at the time such Registration
Statement is declared effective, and any such prospectus as amended or
supplemented by any prospectus supplement, including a prospectus supplement
with respect to the terms of the offering of any portion of the Registrable
Securities covered by a Shelf Registration Statement, and by all other
amendments and supplements to such prospectus, and in each case, including all
material incorporated by reference therein.
"REGISTRABLE SECURITIES" shall mean the Securities; provided, however,
that the Securities shall cease to be Registrable Securities on the earlier to
occur of (i) the date on which a Shelf Registration Statement with respect to
such Securities shall have been declared effective under the 1933 Act and such
Securities shall have been disposed of pursuant to such Shelf Registration
Statement, (ii) the date on which such Securities may be sold to the public
pursuant to Rule 144(k) (or any similar provision then in force, but not Rule
144A) under the 1933 Act or (iii) the date on which such Securities shall have
ceased to be outstanding.
"REGISTRATION DEFAULTS" shall mean the occurrence of any of the
following events:
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(i) on or prior to the 180th day following the date of original
issuance of the Preferred Stock, a Shelf Registration
Statement has not been filed with the SEC,
(ii) on or prior to the 210th day following the date of original
issuance of the Preferred Stock, a Shelf Registration
Statement has not been declared effective by the SEC or
(iii) after a Shelf Registration Statement has been declared
effective by the SEC, the Shelf Registration Statement
thereafter ceases to remain effective or useable (except as
provided in the second to last paragraph of Section 3) in
connection with resales of the Registrable Securities during
the period specified in the third sentence of Section 2(a);
provided, however, that a Registration Default shall cease to occur and be cured
under clause (i) above at such time as the Shelf Registration Statement is
filed; under clause (ii) above at such time as the Shelf Registration Statement
is declared effective by the SEC; and under clause (iii) above at such time as
the Shelf Registration Statement becomes effective or usable again after ceasing
to be effective or usable.
"REGISTRATION EXPENSES" shall mean any and all expenses incident to
performance of or compliance by the Company with this Agreement, including
without limitation: (i) all SEC, stock exchange or National Association of
Securities Dealers, Inc. registration and filing fees, (ii) all fees and
expenses incurred in connection with compliance with state securities or blue
sky laws (including reasonable fees and disbursements of counsel (not to exceed
$10,000) for any underwriters or Holders in connection with blue sky
qualification of any of the Registrable Securities), (iii) all expenses of
printing and distributing, at the request of the Company, any Shelf Registration
Statement, any Prospectus, any amendments or supplements thereto, (iv) all
rating agency fees, (v) all fees and disbursements of the Transfer Agent, (vi)
the fees and disbursements of counsel for the Company and the reasonable fees
and disbursements of one counsel for the Holders incurred on or before the
initial effectiveness of the Shelf Registration Statement, which counsel shall
be counsel for the Initial Purchasers or other counsel selected by the Majority
Holders and satisfactory to the Company ("COUNSEL FOR THE HOLDERS"), (vii) the
fees and disbursements of the independent public accountants of the Company,
including the expenses of any special audits or "cold comfort" letters required
by or incident to such performance and compliance, and (viii) the fees and
expenses of listing the Common Stock on any securities exchange or quotation
system in accordance with Section 3(o) hereof,
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but excluding underwriting discounts, if any, and commissions and transfer
taxes, if any, relating to the sale or disposition of Registrable Securities by
the Holders.
"SEC" shall mean the Securities and Exchange Commission.
"SECURITIES" shall have the meaning set forth in the preamble.
"SHELF REGISTRATION" shall mean a registration effected pursuant to
Section 2(a) hereof.
"SHELF REGISTRATION STATEMENT" shall mean a "shelf" registration
statement of the Company pursuant to the provisions of Section 2(a) of this
Agreement which covers all of the Registrable Securities (except Registrable
Securities that the Holders have elected not to include in such Shelf
Registration Statement) or Securities that represent an unsold allotment for the
original offering thereof on an appropriate form under Rule 415 under the 1933
Act, or any similar rule that may be adopted by the SEC, and all amendments and
supplements to such registration statement, including post-effective amendments,
in each case, including the Prospectus contained therein, all exhibits thereto
and all material incorporated by reference therein.
"TRANSFER AGENT" shall mean the transfer agent with respect to the
Preferred Stock and the Common Stock.
"UNDERWRITERS" shall have the meaning set forth in Section 3 hereof.
"UNDERWRITTEN REGISTRATION" or "UNDERWRITTEN OFFERING" shall mean a
registration in which Registrable Securities are sold to an Underwriter for
reoffering to the public.
2. Registration under the 0000 Xxx.
(a) The Company shall prepare, and not later than 180 days
following the date of original issuance of the Preferred Stock, shall
use its reasonable best efforts to cause to be filed with the SEC, a
Shelf Registration Statement providing for the sale by the Holders of
all of the Registrable Securities. The Company shall use its reasonable
best efforts to have the Shelf Registration Statement declared
effective by the SEC on or prior to the date that is 210 days after the
date of original issuance of the Preferred Stock. The Company agrees to
use its reasonable best efforts to keep the Shelf Registration
Statement continuously effective until the earlier of the expiration of
the period referred to in Rule 144(k) under the 1933 Act with respect
to the Registrable Securities or two years after the
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issue date of the Preferred Stock or such shorter period that will
terminate when all of the Registrable Securities covered by the Shelf
Registration Statement have been sold pursuant to the Shelf
Registration Statement. The Company further agrees to supplement or
amend the Shelf Registration Statement if required by the rules,
regulations or instructions applicable to the registration form used by
the Company for such Shelf Registration Statement or by the 1933 Act or
by any other rules and regulations thereunder for shelf registration or
if reasonably requested by a Holder with respect to information
relating to such Holder and required by applicable law to be included
therein, and to use its reasonable best efforts to cause any such
amendment to become effective and such Shelf Registration Statement to
become usable as soon thereafter as practicable. The Company agrees to
furnish to the Holders of Registrable Securities copies of any such
supplement or amendment promptly after its being used or filed with the
SEC.
(b) If the Registrable Securities include or consist of
Preferred Stock, the Company shall set forth in any Shelf Registration
Statement, as of the effective date of such Shelf Registration
Statement, the Company's intention not to enter into any agreement or
other contractual arrangement that would prohibit the Company from
paying dividends in shares of Common Stock, as contemplated by the
terms of the Preferred Stock.
(c) The Company shall pay all Registration Expenses in
connection with the registration pursuant to Section 2(a). Each Holder
shall pay all underwriting discounts, if any, and commissions and
transfer taxes, if any, relating to the sale or disposition of such
Holder's Registrable Securities pursuant to the Shelf Registration
Statement.
(d) The Shelf Registration Statement filed pursuant to Section
2(a) hereof will not be deemed to have become effective unless it has
been declared effective by the SEC; provided, however, that, if, after
it has been declared effective, the offering of Registrable Securities
pursuant to the Shelf Registration Statement is interfered with by any
stop order, injunction or other order or requirement of the SEC or any
other governmental agency or court, the Shelf Registration Statement
will be deemed not to be effective during the period of such
interference until the offering of Registrable Securities pursuant to
the Shelf Registration Statement may legally resume.
(e) Upon the occurrence of a Registration Default, Holders
will be entitled to receive Additional Dividends as provided in the
Certificate
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of Designations or, if the Preferred Stock has been exchanged for
Convertible Debentures, Additional Interest as provided in the
Indenture.
(f) Without limiting the remedies available to the Initial
Purchasers and the Holders, the Company acknowledges that any failure
by the Company to comply with its obligations under Section 2(a) hereof
may result in material irreparable injury to the Initial Purchasers or
the Holders for which there is no adequate remedy at law, that it will
not be possible to measure damages for such injuries precisely and
that, in the event of any such failure, the Initial Purchasers or any
Holder may obtain such relief as may be required to specifically
enforce the Company's obligations under Section 2(a) hereof.
3. Registration Procedures.
In connection with the obligations of the Company with respect to the
Shelf Registration Statement pursuant to Section 2(a) hereof, the Company shall
reasonably promptly:
(a) prepare and file with the SEC a Shelf Registration
Statement on the appropriate form under the 1933 Act, which form shall
(x) be selected by the Company, (y) be available for the sale of the
Registrable Securities by the selling Holders thereof and (z) comply as
to form in all material respects with the requirements of the
applicable form and include all financial statements required by the
SEC to be filed therewith or incorporated by reference therein, and use
its reasonable best efforts to cause the Shelf Registration Statement
to become effective and remain effective in accordance with Section 2
hereof;
(b) prepare and file with the SEC such amendments and post-
effective amendments to the Shelf Registration Statement as may be
necessary to keep the Shelf Registration Statement effective for the
applicable period and cause each Prospectus to be supplemented by any
required prospectus supplement and, as so supplemented, to be filed
pursuant to Rule 424 under the 1933 Act; and keep each Prospectus
current during the period described under Section 4(3) and Rule 174
under the 1933 Act that is applicable to transactions by brokers or
dealers with respect to the Registrable Securities;
(c) furnish to each Holder of Registrable Securities, to
counsel for the Holders and for the Initial Purchasers (or, if
applicable, separate counsel for the Holders) and to each Underwriter
of an Underwritten Offering of Registrable Securities, if any, without
charge, as many copies
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of each Prospectus, including each preliminary Prospectus and any
amendment or supplement thereto and such other documents as such Holder
or Underwriter may reasonably request, in order to facilitate the
public sale or other disposition of the Registrable Securities; and the
Company consents to the use of such Prospectus and any amendment or
supplement thereto in accordance with applicable law by each of the
selling Holders of Registrable Securities and any such Underwriters in
connection with the offering and sale of the Registrable Securities
covered by and in the manner described in such Prospectus or any
amendment or supplement thereto in accordance with applicable law;
provided, however, that such consent is subject to compliance by the
Holders and any such Underwriters with the second to last paragraph of
Section 3;
(d) use its reasonable best efforts (i) to register or qualify
the Registrable Securities under all applicable state securities or
"blue sky" laws of such jurisdictions as any Holder of Registrable
Securities covered by the Shelf Registration Statement shall reasonably
request in writing by the time the Shelf Registration Statement is
declared effective by the SEC and (ii) to cooperate with such Holders
in connection with any filings required to be made with the National
Association of Securities Dealers, Inc. and do any and all other
customary acts and things which may be reasonably necessary or
advisable to enable such Holder to consummate the disposition in each
such jurisdiction of such Registrable Securities owned by such Holder;
provided, however, that the Company shall not be required to (A)
register or qualify as a foreign corporation or as a dealer in
securities in any jurisdiction where it would not otherwise be required
to register or qualify but for this Section 3(d), or (B) take any
action that would subject it to any general service of process or to
taxation in any such jurisdiction if it is not so subject;
(e) notify each Holder of Registrable Securities, counsel for
the Holders and for the Initial Purchasers (or, if applicable, separate
counsel for the Holders) promptly and, if requested by such Persons,
confirm such advice in writing, (i) when the Shelf Registration
Statement has become effective and when any post-effective amendment
thereto has been filed and becomes effective, (ii) of any request by
the SEC or any state securities authority for amendments and
supplements to the Shelf Registration Statement and Prospectus or for
additional information after the Shelf Registration Statement has
become effective, (iii) of the issuance by the SEC or any state
securities authority of any stop order suspending the effectiveness of
the Shelf Registration Statement or the initiation of any proceedings
for that purpose, (iv) if, between the effective date of the Shelf
Registration Statement and the closing of any sale of Registrable
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Securities covered thereby, the Company receives any notification with
respect to the suspension of the qualification of the Registrable
Securities for sale in any jurisdiction or the initiation of any
proceeding for such purpose, (v) of the happening of any event during
the period the Shelf Registration Statement is effective which makes
any statement made in the Shelf Registration Statement or the related
Prospectus untrue in any material respect or which requires the making
of any changes in the Shelf Registration Statement or Prospectus in
order to make the statements therein not misleading and (vi) of any
determination by the Company that a post-effective amendment to the
Shelf Registration Statement would be appropriate;
(f) make every reasonable effort to obtain the withdrawal of
any order suspending the effectiveness of the Shelf Registration
Statement at the earliest possible moment and provide prompt notice to
each Holder of Registrable Securities of the withdrawal of any such
order;
(g) furnish to each Holder of Registrable Securities, upon
request and without charge, at least one conformed copy of the Shelf
Registration Statement and any post-effective amendment thereto
(without documents incorporated therein by reference or exhibits
thereto, unless requested);
(h) in connection with any sale of Registrable Securities that
will result in such securities no longer being Registrable Securities,
cooperate with the selling Holders of Registrable Securities to
facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold and not bearing any
restrictive legends (unless required by applicable securities laws) and
enable such Registrable Securities to be in such denominations and
registered in such names as the selling Holders may reasonably request
at least two business days prior to the closing of any sale of
Registrable Securities;
(i) upon the occurrence of any event contemplated by Section
3(e) hereof that so requires, use its reasonable best efforts to
prepare and file with the SEC a supplement or post-effective amendment
to the Shelf Registration Statement or the related Prospectus or any
document incorporated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of the
Registrable Securities, such Prospectus will not contain any untrue
statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading. The Company agrees to notify the
Holders of Registrable Securities to suspend use of the Prospectus as
promptly as practicable after
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the occurrence of such an event, and the Holders hereby agree to
suspend use of the Prospectus until the Company has amended or
supplemented the Prospectus to correct such misstatement or omission;
(j) a reasonable time prior to the filing of the Shelf
Registration Statement, any Prospectus, any amendment to the Shelf
Registration Statement or amendment or supplement to a Prospectus to be
filed pursuant to the 1933 Act, provide copies of such document to
Xxxxxxx Xxxxx Xxxxxx and Xxxxxx Xxxxxxx and their counsel and make such
of the representatives of the Company as shall be reasonably requested
by Xxxxxxx Xxxxx Barney and Xxxxxx Xxxxxxx or their counsel available
for discussion of such document, and shall not at any time file or make
any amendment to the Shelf Registration Statement, any Prospectus or
any amendment of or supplement to the Shelf Registration Statement or a
Prospectus, of which Xxxxxxx Xxxxx Barney and Xxxxxx Xxxxxxx and their
counsel shall not have previously been advised and furnished a copy or
to which Xxxxxxx Xxxxx Barney and Xxxxxx Xxxxxxx or their counsel shall
reasonably object within two business days after receipt thereof;
(k) obtain a CUSIP number for all Registrable Securities not
later than the effective date of the Shelf Registration Statement;
(l) if the Registrable Securities consist of or include
Convertible Debentures, cause the Indenture to be qualified under the
Trust Indenture Act of 1989, as amended (the "TIA"), in connection with
the registration of the Registrable Securities, cooperate with the
Trustee and the Holders to effect such changes to the Indenture as may
be required for the Indenture to be so qualified in accordance with the
terms of the TIA and execute, and use its best efforts to cause the
Trustee to execute, all documents as may be required to effect such
changes and all other forms and documents required to be filed with the
SEC to enable the Indenture to be so qualified in a timely manner;
(m) make available for inspection by any Underwriter
reasonably acceptable to the Company participating in any disposition
pursuant to the Shelf Registration Statement, and counsel for the
Holders reasonably acceptable to the Company, at reasonable times and
in a reasonable manner, all financial and other records, material
corporate documents and properties of the Company, and cause the
respective officers, directors and employees of the Company to supply
such information reasonably requested by any such representative,
Underwriter, attorney or accountant in connection with the Shelf
Registration Statement, in each case, that would customarily be
reviewed or examined in connection with a "DUE
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DILIGENCE" review in connection with filing a Shelf Registration
Statement of the Company;
(n) if reasonably requested by any Holder of Registrable
Securities covered by the Shelf Registration Statement, (i) as promptly
as practicable incorporate in a Prospectus supplement or post-effective
amendment such information with respect to such Holder as is required
to be included therein in accordance with applicable law and (ii) make
all required filings of such Prospectus supplement or such
post-effective amendment as soon as the Company has received
notification of the matters to be incorporated in such filing;
provided, however, that the Company shall not be required to take any
action pursuant to this Section 3(n) that would, in the opinion of
counsel for the Company reasonably satisfactory to the Initial
Purchasers, violate applicable law;
(o) cause all Registrable Securities covered by the Shelf
Registration Statement (i) that consist of Common Stock to be listed on
each securities exchange or quotation system on which similar
securities issued by the Company are then listed, if so requested by
the Majority Holders and (ii) that consist of Preferred Stock to be
rated with Standard & Poors and Xxxxx'x Investors Service Inc., if so
requested by the Majority Holders; and
(p) in the case of an Underwritten Offering pursuant to the
Shelf Registration, upon the request of the Majority Holders of
Registrable Securities included therein, enter into such customary
agreements and take all such other customary actions in connection
therewith (including those reasonably requested by counsel for the
Holders) in order to expedite or facilitate the disposition of such
Registrable Securities and in such connection, (i) to the extent
possible, make such reasonable representations and warranties to the
Holders and any Underwriters of such Registrable Securities with
respect to the business of the Company and its subsidiaries, the Shelf
Registration Statement, Prospectus and documents incorporated by
reference or deemed incorporated by reference, if any, in each case, in
form, substance and scope as were made by the Company in the Purchase
Agreement and confirm the same if and when requested, (ii) obtain
opinions of counsel to the Company (which counsel and opinions, in
form, scope and substance, shall be reasonably satisfactory to the
selling Holders and such Underwriters and their respective counsel)
addressed to each selling Holder and Underwriter of Registrable
Securities, covering the matters customarily covered in opinions
requested in underwritten offerings, (iii) subject to the making of
such representations as are customarily made to such accountants in
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relation to their provision of such letters, obtain "cold comfort"
letters from the independent certified public accountants of the
Company (and, if necessary, any other certified public accountant of
any subsidiary of the Company, or of any business acquired by the
Company for which financial statements and financial data are or are
required to be included in the Shelf Registration Statement) addressed
to each selling Holder and Underwriter of Registrable Securities, such
letters to be in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with
underwritten offerings, and (iv) deliver such documents and
certificates as may be reasonably requested by counsel for the Holders
to evidence the continued validity of the representations and
warranties of the Company made pursuant to clause (i) above and to
evidence compliance with any customary conditions contained in an
underwriting agreement.
The Company may require each Holder of Registrable Securities to
promptly furnish to the Company such information regarding the Holders and the
proposed distribution by such Holder of such Registrable Securities as the
Company may from time to time reasonably request in writing. Notwithstanding
anything herein to the contrary, no Holder of Registrable Securities may include
any of its Registrable Securities in any Shelf Registration Statement pursuant
to this Agreement unless and until such Holder (i) furnishes to the Company in
writing within 20 days after receipt of a request therefor, the information
specified in Items 507 and 508 of Regulation S-K, as applicable, of the 1933 Act
for use in connection with any Shelf Registration Statement or Prospectus or
preliminary prospectus included therein, (ii) agrees to promptly furnish
additional information required to be disclosed in order to make the information
previously furnished to the Company by such Holder not materially misleading and
(iii) at the Company's request, acknowledges in writing its agreement to be
bound by the provisions of this Agreement in accordance with Section 5(d)
hereof. No Holder shall be entitled to Additional Dividends or Additional
Interest during any period in which exclusion of any Registrable Securities of
such Holder from any Shelf Registration Statement results from the operation of
this paragraph.
Each Holder agrees that, upon receipt of any notice from the Company of
the happening of any event of the kind described in Section 3(e) hereof, such
Holder will forthwith discontinue disposition of Registrable Securities pursuant
to the Shelf Registration Statement until such Holder's receipt of the copies of
the supplemented or amended Prospectus contemplated by Section 3(i) hereof, and,
if so directed by the Company, such Holder will deliver to the Company (at its
expense) all copies in its possession, other than permanent file copies then in
such Holder's possession, of the Prospectus covering such Registrable Securities
current at the time of receipt of such notice. If the Company shall give any
such
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notice to suspend the disposition of Registrable Securities pursuant to the
Shelf Registration Statement, the Company shall extend the period during which
the Shelf Registration Statement shall be maintained effective pursuant to this
Agreement by the number of days during the period from and including the date of
the giving of such notice to and including the date when the Holders shall have
received copies of the supplemented or amended Prospectus necessary to resume
such dispositions. Such suspensions may not exceed 90 days in the aggregate in
any consecutive 365-day period.
The Holders of Registrable Securities covered by the Shelf Registration
Statement who desire to do so may sell such Registrable Securities in an
Underwritten Offering. In any such Underwritten Offering, the investment banker
or investment bankers and manager or managers (the "UNDERWRITERS") that will
administer the offering will be selected by the Majority Holders of the
Registrable Securities included in such offering and shall be reasonably
acceptable to the Company.
4. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless the
Initial Purchasers, each other Holder and each Person, if any, who
controls the Initial Purchasers or any other Holder within the meaning
of either Section 15 of the 1933 Act or Section 20 of the 1934 Act, or
is under common control with, or is controlled by any Initial Purchaser
or any other Holder, from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or
other expenses incurred in connection with defending or investigating
any such action or claim) caused by any untrue statement or alleged
untrue statement of a material fact contained in the Shelf Registration
Statement (or any amendment thereto pursuant to which Registrable
Securities were registered under the 1933 Act, including all documents
incorporated therein by reference), or caused by any omission or
alleged omission to state therein a material fact necessary to make the
statements therein in light of the circumstances under which they were
made not misleading, or caused by any untrue statement or alleged
untrue statement of a material fact contained in any Prospectus (as
amended or supplemented if the Company shall have furnished any
amendments or supplements thereto, including all documents incorporated
therein by reference), or caused by any omission or alleged omission to
state therein a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to
any Initial
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Purchaser or other Holder furnished to the Company in writing by such
Initial Purchaser or other Holder through you expressly for use
therein; provided, however, that the foregoing indemnity with respect
to the Preliminary Memorandum shall not inure to the benefit of the
Initial Purchaser, other Holder or controlling person from whom the
person asserting any such losses, claims, damages, liabilities or
actions in respect thereof purchased Securities to the extent that any
such losses, claims, damages, liabilities or actions in respect thereof
result from such Initial Purchaser's, other Holder's or controlling
person's selling Securities to a person in an initial resale to whom
there was not sent or given, at or prior to the written confirmation of
the sale of such Securities, a copy of the Final Memorandum (as amended
or supplemented), if the Company had previously furnished a copy of
such amendments or supplements to such Initial Purchaser, other Holder
or controlling person prior to confirmation of the sale of such
Securities to such person by such Initial Purchaser, other Holder or
controlling person, and the losses, claims, damages, liabilities or
actions in respect thereof of such Initial Purchaser, other Holder or
controlling person result from an untrue statement or omission of a
material fact contained in the Preliminary Memorandum, which was
corrected in the Final Memorandum (as amended or supplemented).
(b) Each Holder agrees, severally and not jointly, to
indemnify and hold harmless the Company, the Initial Purchasers, each
affiliate of an Initial Purchaser which participated in the
distribution of the Securities and each other selling Holder, and each
of their respective directors, officers who sign the Shelf Registration
Statement, and any Person who controls the Company, any Initial
Purchaser and each other selling Holder within the meaning of Section
15 of the Act or Section 20 of the 1934 Act, to the same extent as the
foregoing indemnity from the Company to the Initial Purchasers and
other Holders, but only with reference to such untrue statements or
omissions, or such alleged untrue statements or omissions, contained in
the Shelf Registration Statement (or any such amendment thereto) based
upon information relating to any Initial Purchaser or other Holder
furnished in writing by or on behalf of such Initial Purchaser or other
Holder expressly for use in the Shelf Registration Statement (or any
amendment thereto) or any Prospectus (or any amendment or supplement
thereto).
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of
which indemnity may be sought pursuant to Section 4(a) or 4(b), such
Person (the "INDEMNIFIED PERSON") shall promptly notify the Person
against whom such indemnity may be sought (the "INDEMNIFYING PERSON")
in writing and the Indemnifying Person, upon request of the Indemnified
14
Person, shall retain one counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others
the Indemnifying Person may designate in such proceeding and shall pay
the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any Indemnified Person shall have the right to
retain its own counsel, but the fees and expenses of such counsel shall
be at the expense of such Indemnified Person unless (i) the
Indemnifying Person and the Indemnified Person shall have mutually
agreed to the retention of such counsel or (ii) the named parties to
any such proceeding (including any impleaded parties) include both the
Indemnifying Person and the Indemnified Person and representation of
both parties by the same counsel would be inappropriate under
applicable standards of professional conduct due to actual or potential
differing interests between them. It is understood that the
Indemnifying Person shall not, in respect of the legal expenses of any
Indemnified Person in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local
counsel) for all such Indemnified Persons and that all such fees and
expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by Xxxxxxx Xxxxx Xxxxxx and Xxxxxx Xxxxxxx, in
the case of persons indemnified pursuant to Section 4(a), and by the
Company, in the case of persons indemnified pursuant to Section 4(b).
The Indemnifying Person shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with
such consent or if there be a final judgment for the plaintiff, the
Indemnifying Person agrees to indemnify the Indemnified Person from and
against any loss or liability by reason of such settlement or judgment.
No Indemnifying Person shall, without the prior written consent of the
Indemnified Person, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have
been a party and indemnity could have been sought hereunder by such
Indemnified Person, unless such settlement includes an unconditional
release of such Indemnified Person from all liability on claims that
are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in Section
4(a) or 4(b) is unavailable to an Indemnified Person or insufficient in
respect of any losses, claims, damages or liabilities referred to
therein, then each Indemnifying Person under such paragraph, in lieu of
indemnifying such Indemnified Person thereunder, shall contribute to
the amount paid or payable by such Indemnified Person as a result of
such losses, claims, damages or liabilities (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company
on the one hand and the Holders on the other hand from the offering of
the Securities or (ii) if the allocation provided by clause 4(d)(i)
above is not permitted by applicable
15
law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause 4(d)(i) above but also the
relative fault of the Company on the one hand and of the Holders on the
other hand in connection with the statements or omissions that resulted
in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations.
(e) The Company and each Holder agree that it would not be
just or equitable if contribution pursuant to this Section 4 were
determined by pro rata allocation or by any other method of allocation
that does not take account of the equitable considerations referred to
in Section 4(d) above. The amount paid or payable by an Indemnified
Person as a result of the losses, claims, damages and liabilities
referred to in Section 4(d) shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably
incurred by such Indemnified Person in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of
this Section 4, no Holder shall be required to contribute any amount in
excess of the amount by which the total price at which Registrable
Securities were sold by such Holder exceeds the amount of any damages
that such Holder has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No
Person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 0000 Xxx) shall be entitled to contribution from
any Person who was not guilty of such fraudulent misrepresentation. The
Holders' respective obligations to contribute pursuant to this Section
are several in proportion to the aggregate principal amount of
Registrable Securities sold by them pursuant to the Shelf Registration
Statement. The remedies provided for in this Section 4 are not
exclusive and shall not limit any rights or remedies which may
otherwise be available to any Indemnified Party at law or in equity.
(f) Any losses, claims, damages or liabilities for which an
Indemnified Person is entitled to indemnification or contribution under
this Section shall be paid by the Indemnifying Person to the
Indemnified Person as such losses, claims, damages or liabilities are
incurred. The indemnity and contribution agreements contained in this
Section 4 and the representations and warranties of the Company
contained in this Agreement shall remain operative and in full force
and effect, regardless of (i) any investigation made by or on behalf of
any Initial Purchaser, any Holder or any Person controlling any Initial
Purchaser, any Holder, the Company's directors or officers or any
Person controlling the Company, (ii) any termination of this Agreement
and (iii) any sale of Registrable Securities pursuant to the Shelf
Registration Statement.
16
5. Miscellaneous.
(a) No Inconsistent Agreements. The Company has not entered
into, and on or after the date of this Agreement will not enter into,
any agreement which is inconsistent with the rights granted to the
Holders of Registrable Securities in this Agreement or otherwise
conflicts with the provisions hereof. The rights granted to the Holders
hereunder do not in any way conflict with and are not inconsistent with
the rights granted to the holders of the Company's other issued and
outstanding securities under any such agreements.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, 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 Holders of at least a majority in aggregate
principal amount of the outstanding Registrable Securities affected by
such amendment, modification, supplement, waiver or consent; provided,
however, that no amendment, modification, supplement, waiver or consent
to any departure from the provisions of Section 4 hereof shall be
effective as against any Holder of Registrable Securities unless
consented to in writing by such Holder.
(c) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery,
registered or certified first-class mail, telex, telecopier, or any
courier guaranteeing overnight delivery (i) if to a Holder, at the most
current address set forth in the records of the Transfer Agent, which
address initially is, with respect to the Initial Purchasers, the
address set forth in the Purchase Agreement; and (ii) if to the
Company, initially at the Company's address set forth in the Purchase
Agreement and thereafter at such other address, notice of which is
given in accordance with the provisions of this Section. All such
notices and communications shall be deemed to have been duly given at
the time delivered, if personally delivered; five business days after
being deposited in the mail, postage pre-paid, if mailed; when receipt
is acknowledged, if telecopied; and on the next business day if timely
delivered to an air courier guaranteeing overnight delivery.
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees
of each of the parties, including, without limitation and without the
need for
17
an express assignment or assumption, subsequent Holders; 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 Purchase Agreement or the Certificate of Designations. 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 the benefits hereof. The Initial Purchasers
shall have no liability or obligation to the Company with respect to
any failure by any other Holder to comply with, or any breach by any
other Holder of, the obligations of such Holder under this Agreement.
(e) Purchases and Sales of Securities. The Company shall not,
and shall cause its affiliates (as defined in rule 405 under the 0000
Xxx) not to, purchase and then resell or otherwise transfer any
Securities other than to the Company or its affiliates.
(f) Third Party Beneficiary. Each Holder shall be a third
party beneficiary to the agreements made hereunder between the Company,
on the one hand, and the Initial Purchasers, on the other hand, and
shall have the right to enforce such agreements directly to the extent
it deems such enforcement necessary or advisable to protect its rights
or the rights of Holders hereunder.
(g) Counterparts. This Agreement may be signed in any number
of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same
instrument.
(h) Headings. The headings of the sections of this Agreement
have been inserted for convenience of reference only and shall not be
deemed a part of this Agreement.
(i) Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New
York.
(j) Severability. In the event that one or more of the
provisions contained herein, or the application thereof in any
circumstances, is held invalid, illegal or unenforceable, the validity,
legality and enforceability of any such provision in every other
respect and of the remaining provisions contained herein shall not be
affected or impaired thereby.
18
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
LUCENT TECHNOLOGIES INC.
By /s/ Xxxxx X. XxXxxxx
--------------------------------
Name: Xxxxx X. XxXxxxx
Title: Assistant Treasurer
XXXXXXX XXXXX BARNEY INC.
XXXXXX XXXXXXX & CO. INCORPORATED
For themselves and as Representatives of
the other Initial Purchasers
By: XXXXXXX XXXXX BARNEY INC.
By /s/ Xxxxxx Xxxxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President
By: XXXXXX XXXXXXX & CO. INCORPORATED
By /s/ Xxxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Executive Director
