EXHIBIT 4.8
SILICON VALLEY BANK
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
THIS AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this
"Agreement") is entered into as of January 11, 2002 by and between SILICON
VALLEY BANK ("Purchaser") and MTI TECHNOLOGY CORPORATION (the "Company").
RECITALS
WHEREAS, the Company and the Purchaser are parties to a Registration
Rights Agreement, dated November 8, 2001 (the "Prior Agreement"), setting forth
certain rights and conditions with respect to the Company's Common Stock.
WHEREAS, the Company is issuing a warrant (the "Warrant") to the
Purchaser pursuant to which the Purchaser has the right to acquire from the
Company the Shares (as defined in Section 14 of the Warrant).
WHEREAS, by this Agreement, the Purchaser and the Company desire to set
forth the registration rights of the Shares all as provided herein.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
conditions hereinafter set forth, the parties hereto mutually agree as follows:
1. Registration Rights. The Company covenants and agrees as follows:
1.1 Definitions. For purposes of this Section 1:
(a) The term "register," "registered," and
"registration" refer to a registration effected by preparing and filing a
Registration Statement or similar document in compliance with the Securities Act
of 1933, as amended (the "Securities Act"), and the declaration or ordering of
effectiveness of such Registration Statement or document.
(b) The term "Registrable Securities" means (i) the
Shares, and (ii) any Common Stock of the Company issued as (or issuable upon the
conversion or exercise of any warrant, right or other security which is issued
as) a dividend or other distribution with respect to, or in exchange for or in
replacement of, any stock referred to in (i). For the avoidance of doubt, the
term "Registrable Securities" shall cease to apply to any such Shares or any
such Common Stock from and after the sale thereof pursuant to an effective
Registration Statement or pursuant to SEC Rule 144.
(c) The terms "Holder" or "Holders" means the Purchaser
or qualifying transferees under Section 1.9 hereof who hold Registrable
Securities.
(d) The term "SEC" means the Securities and Exchange
Commission.
SVB/MTI Technology/SVB AR Reg Rts Agr-2
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(e) The term "Registration Statement" means a
registration statement filed by the Company with the SEC in compliance with the
Securities Act and the rules and regulations promulgated thereunder for a public
offering and sale of its Common Stock (other than a registration statement on a
Limited Purpose Form). As used herein, "Limited Purpose Form" means Form S-8
relating solely to employee stock option or purchase plans, or Form S-4 relating
solely to an SEC Rule 145 transaction, or any other form (but excluding Forms
X-0, X-0, X-0 or S-18, or their successor forms) or any successor to such forms,
which does not include substantially the same information as would be required
to be included in a Registration Statement covering the sale of Registrable
Securities.
1.2 Company Registration.
(a) Registration. If at any time or from time to time,
the Company shall determine to register any of its securities, for its own
account or the account of any of its stockholders, other than a registration on
a Limited Purpose Form, the Company will:
(i) promptly give to each Holder written notice
thereof (which shall include a list of the jurisdictions in which the Company
intends to attempt to qualify such securities under the applicable blue sky or
other state securities laws); provided, however, if such securities are listed
on any established stock exchange or a national market system, including the
Nasdaq National Market, no list need be provided); and
(ii) include in such registration (and
compliance), and in any underwriting involved therein, all the Registrable
Securities specified in a written request or requests, made within 30 days after
receipt of such written notice from the Company, by any Holder or Holders,
except as set forth in Section 1.2(b) below.
(b) Underwriting. If the registration of which the
Company gives notice is for a registered public offering involving an
underwriting, the Company shall so advise the Holders as a part of the written
notice given pursuant to Section 1.2(a)(i). In such event the right of any
Holder to registration pursuant to this Section 1.2 shall be conditioned upon
such Holder's participation in such underwriting and the inclusion of such
Holder's Registrable Securities in the underwriting to the extent provided
herein. All Holders proposing to sell their securities through such underwriting
shall (together with the Company and the other stockholders selling their
securities through such underwriting) enter into an underwriting agreement (and
other documents reasonably and customarily required under the terms of such
underwriting agreement) in customary form with the underwriter or underwriters
selected for such underwriting by the Company. Notwithstanding any other
provision of this Section 1.2, if the underwriter advises the Company that
marketing factors require a limitation of the number of securities underwritten
(including Registrable Securities), then the Company shall so advise all holders
(including the Holders) of Registrable Securities that would otherwise be so
underwritten, and the number of shares that may be included in the underwriting
shall be allocated to the holders (including the Holders) of such Registrable
Securities on a pro rata basis based on the number of Registrable Securities
held by all such holders (including the Holders).
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Notwithstanding the foregoing, in the case of an offering of Common Stock by the
Company pursuant to this Section 1.2, if the Company decides to withdraw such
offering, it shall be under no obligation to register any Registrable Securities
pursuant to this Section as part of such withdrawn offering.
1.3 Expenses of Registration. All expenses incurred in
connection with any registration, qualification or compliance pursuant to this
Section 1 including without limitation, all registration, filing and
qualification fees, printing expenses, fees and disbursements of counsel for the
Company and expenses of any special audits incidental to or required by such
registration, shall be borne by the Company; provided, however, that the Company
shall not be required to pay underwriters' fees, discounts or commissions
relating to Registrable Securities. All expenses of any registered offering not
otherwise borne by the Company shall be borne pro rata among the Holders
participating in the offering and the Company.
1.4 Registration Procedures. In the case of each registration
effected by the Company pursuant to this Agreement, the Company will keep each
Holder participating therein advised in writing as to the initiation of each
registration and as to the completion thereof. At its expense (except as
otherwise provided in Section 1.3), the Company will:
(a) (i) in the case of a registration under Section 1.2,
prepare and file with the SEC a Registration Statement with respect to such
Registrable Securities and use its commercially reasonable efforts to cause such
Registration Statement to become effective, and, upon the request of the Holders
of a majority of the Registrable Securities registered thereunder, keep such
Registration Statement effective for the lessor of (y) 120 days and (z) any
shorter period which will terminate when all Registrable Securities covered by
the Registration Statement have been sold; and (ii) in the case of a
registration under Section 1.8, take the actions specified in such Section.
(b) Prepare and file with the SEC such amendments and
supplements to such Registration Statement and the prospectus used in connection
with such Registration Statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such Registration Statement.
(c) Furnish to each Holder of Registrable Securities
covered by such Registration Statement copies of the prospectus, including the
preliminary prospectus, in conformity with the requirements of the Securities
Act, and such other documents as they may reasonably request in order to
facilitate the disposition of Registrable Securities owned by them.
(d) Use its commercially reasonable efforts to register
and qualify the securities covered by such Registration Statement under such
other securities or Blue Sky laws of such jurisdictions as shall be reasonably
requested by the Holders, provided that the Company shall not be required in
connection therewith or as a condition thereto to qualify to do business, to
subject itself to franchise, business or income taxes, or to file a general
consent to service of process, in any such states or jurisdictions.
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(e) In the event of any underwritten public offering,
enter into and perform its obligations under an underwriting agreement (and
other documents reasonably and customarily required under the terms of such
underwriting agreement), in usual and customary form, with the managing
underwriter of such offering. Each Holder participating in such underwriting
shall also enter into and perform its obligations under such an agreement.
(f) Provide each Holder of Registrable Securities
covered by such Registration Statement with a Blackout Notice (pursuant to
Section 1.10(a)), as applicable, and comply with Section 1.10(c) in connection
therewith.
1.5 Indemnification.
(a) The Company will indemnify each Holder of
Registrable Securities and each of its officers, directors and partners, and
each person controlling such Holder, with respect to which such registration,
qualification or compliance has been effected pursuant to this Agreement,
against all claims, losses, expenses, damages and liabilities (or actions in
respect thereto) arising out of or based on any untrue statement (or alleged
untrue statement) of a material fact contained in any prospectus, offering
circular or other document (including any related Registration Statement,
notification or the like) incident to any such registration, qualification or
compliance, or based on any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make the statement
therein not misleading, or any violation or alleged violation by the Company of
the Securities Act, the Securities Exchange Act of 1934, as amended, ("Exchange
Act") or any state securities law applicable to the Company or any rule or
regulation promulgated under the Securities Act, the Exchange Act or any such
state law and relating to action or inaction required of the Company in
connection with any such registration, qualification of compliance, and will
reimburse each such Holder, each of its officers, directors and partners, and
each person controlling such Holder, within a reasonable amount of time after
incurred for any reasonable legal and any other expenses incurred in connection
with investigating, defending or settling any such claim, loss, damage,
liability or action; provided, however, that the indemnity agreement contained
in this Section 1.5(a) shall not apply to amounts paid in settlement of any such
claim, loss, damage, liability, or action if such settlement is effected without
the consent of the Company (which consent shall not be unreasonably withheld);
and provided further, that the Company will not be liable in any such case to
the extent that any such claim, loss, damage or liability arises out of or is
based on any untrue statement or omission based upon written information
furnished to the Company by an instrument duly executed by such Holder
specifically for use therein.
(b) Each Holder will, if Registrable Securities held by
or issuable to such Holder are included in the securities as to which such
registration, qualification or compliance is being effected, indemnify the
Company, each of its directors and officers, each person who controls the
Company within the meaning of the Securities Act, and each other such Holder,
each of its officers, directors and partners and each person controlling such
Holder, against all claims, losses, expenses, damages and liabilities (or
actions in respect thereof) arising out of or based on any untrue statement (or
alleged untrue statement) of a material fact contained in any such Registration
Statement, prospectus, offering circular or other document, or any
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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
will reimburse the Company, such Holders, such directors, officers, partners, or
controlling persons for any reasonable legal or any other expenses incurred in
connection with investigating, defending or settling any such claim, loss,
damage, liability or action, in each case to the extent, but only to the extent,
that such untrue statement (or alleged untrue statement) or omission (or alleged
omission) is made in such Registration Statement, prospectus, offering circular
or other document in reliance upon and in conformity with written information
furnished to the Company by an instrument duly executed by such Holder
specifically for use therein; provided, however, that the indemnity agreement
contained in this Section 1.5(b) shall not apply to amounts paid in settlement
of any such claim, loss, damage, liability or action if such settlement is
effected without the consent of the Holder, (which consent shall not be
unreasonably withheld); and provided further, that the total amount for which
any Holder shall be liable under this Section 1.5(b) shall not in any event
exceed the aggregate proceeds received by such Holder from the sale of
Registrable Securities held by such Holder in such registration.
(c) Each party entitled to indemnification under this
Section 1.5 (the "Indemnified Party") shall give notice to the party required to
provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity may be
sought, and shall permit the Indemnifying Party to assume the defense of any
such claim or any litigation resulting therefrom; provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or litigation,
shall be approved by the Indemnified Party (whose approval shall not be
unreasonably withheld), and the Indemnified Party may participate in such
defense at such party's expense; and provided further, that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations hereunder, unless such failure resulted in
prejudice to the Indemnifying Party; and provided further, that an Indemnified
Party (together with all other Indemnified Parties which may be represented
without conflict by one counsel) shall have the right to retain one separate
counsel, with the fees and expenses to be paid by the Indemnifying Party, if
representation of such Indemnified Party by the counsel retained by the
Indemnifying Party would be inappropriate due to actual or potential differing
interests between such Indemnified Party and any other party represented by such
counsel in such proceeding. No Indemnifying Party, in the defense of any such
claim or litigation, shall, except with the consent of each Indemnified Party,
consent to entry of any judgment or enter into any settlement which does not
include as an unconditional term thereof the giving by the claimant or plaintiff
to such Indemnified Party of a release from all liability in respect to such
claim or litigation.
1.6 Information by Holder. Any Holder or Holders of Registrable
Securities included in any registration shall promptly furnish to the Company
such information regarding such Holder or Holders and the distribution proposed
by such Holder or Holders as the Company may request in writing from time to
time and as shall be required in connection with any registration, qualification
or compliance referred to herein, together with corporate certificates (if any)
as may be reasonably requested by the Company in connection therewith.
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1.7 Rule 144 Reporting. With a view to making available to
Holders the benefits of certain rules and regulations of the SEC which may
permit the sale of the Registrable Securities to the public without
registration, the Company agrees at all times to:
(a) make and keep public information available, as those
terms are understood and defined in SEC Rule 144;
(b) file with the SEC in a timely manner all reports and
other documents required of the Company under the Securities Act and the
Exchange Act; and
(c) so long as a Holder owns any Registrable Securities,
to furnish to such Holder forthwith upon request a written statement by the
Company as to its compliance with the reporting requirements of said Rule 144,
the Securities Act, and the Exchange Act, a copy of the most recently filed
annual or quarterly report of the Company, and such other reports and documents
so filed by the Company as the Holder may reasonably request in complying with
any rule or regulation of the SEC allowing the Holder to sell any such
securities without registration.
1.8 Shelf Registration of Registrable Securities.
(a) The Company shall mail as soon as practicable a
questionnaire (the "Questionnaire"), soliciting the information required by
Items 507 and 508 of Regulations S-K under the Securities Act, to each of the
Holders, and shall deliver a copy of such Questionnaire to any Holder within
five (5) days of it becoming available. As a condition to any Registrable
Securities being included in the Registration Statement referred to below, such
Holder shall submit a Questionnaire and shall amend and submit to the Company a
revised Questionnaire any time the information contained therein ceases to be
accurate and complete.
(b) The Company agrees to file with the SEC a
Registration Statement (the "Shelf Registration") for an offering to be made on
a continuous basis pursuant to Rule 415 under the Securities Act covering all
Registrable Securities held by the Holder, as soon as practicable from the date
hereof, but in no event more than 60 days from the date hereof. The Holders
shall be included as selling securityholders in such Registration Statement
promptly (and in any event within two (2) Business Days) after they have fully
completed and returned to the Company the Questionnaire. The Shelf Registration
shall be on Form S-3 under the Securities Act or another appropriate form
(including Form S-1, if applicable) permitting registration of such Registrable
Securities for resale by the Holders in the manner or manners reasonably
designated by them (including, without limitation, one or more underwritten
offerings). The Company shall use commercially reasonable efforts to cause the
Shelf Registration to be declared effective pursuant to the Securities Act on or
prior to the date that is 120 days after the date of the Prior Agreement and to
keep the Shelf Registration continuously effective under the Securities Act for
60 months (the "Effectiveness Period") or such shorter period ending when there
ceases to be any outstanding Registrable Securities; provided, however, that if,
when, and for so long as the Registrable Securities are permitted to be sold by
the Holders under Rule 144 without application of the requirements of Paragraphs
(c), (e), (f), and (h) of Rule 144 pursuant to
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Paragraph (k) of Rule 144, then the Company need not keep the Shelf Registration
continuously effective from and after the date that the Holders are permitted to
so sell the Registrable Securities under Rule 144 without application of such
requirements.
(c) The Company shall use all commercially reasonable
efforts to keep the Shelf Registration continuously effective, for the period
described in Section 1.8(b) hereof, by supplementing and amending the Shelf
Registration if required by the rules, regulations or instructions applicable to
the registration form used for such Shelf Registration, if required by the
Securities Act or if reasonably requested by the Holders of a majority in amount
of Registrable Securities (determined on a fully converted basis) covered by
such Shelf Registration.
(d) In the event any adjustment in the number of Shares
(as defined in the Warrant) would result in the issuance of additional
Registrable Securities upon exercise of the Warrant, the Company shall promptly,
and within ten (10) Business Days, amend or supplement the Shelf Registration in
order to effect a Shelf Registration of such additional Registrable Securities
pursuant to the terms of Section 1.8(b).
(e) Notwithstanding anything to the contrary in this
Section 1.9, the Company may, by delivering written notice to the Holders,
prohibit offers and sales of Registrable Securities pursuant to the Shelf
Registration at any time (subject to the 30-day limitation set forth in the last
sentence of this Section 1.8(e)) if (i) the Company is in possession of material
non-public information relating to the Company, (ii) the Company determines
(based on written advice of counsel) in good faith that such prohibition is
reasonably necessary in order to avoid a requirement to disclose such material
non-public information to the public, and (iii) the Company determines
reasonably and in good faith that public disclosure of such material non-public
information would not be in the best interests of the Company and its
stockholders; provided, however, that upon the public disclosure by the Company
of the material non-public information described in clauses (i), (ii), and (iii)
of this paragraph, the suspension of the use of the Shelf Registration pursuant
to this Section 1.8(e) shall cease and the Company shall promptly comply, prior
to the next Business Day, with Section 1.4 hereof and notify the Holders that
dispositions of Registrable Securities may be resumed. In the event that during
the Effectiveness Period the prospectus under the Shelf Registration becomes not
usable as a result of the Company's notification under this Section, the Company
shall use its commercially reasonable efforts to provide the Holders with a
usable prospectus as soon as practicable. Anything herein to the contrary
notwithstanding, in no event shall sales of Registrable Securities under the
Shelf Registration be suspended for more than 30 days in any 365-day period.
1.9 Transfer of Registration Rights. Holders' rights to cause
the Company to register their securities and keep information available, granted
to them by the Company under Sections 1.2, 1.7, and 1.8 may be assigned to a
transferee or assignee of a Holder's Registrable Securities not sold to the
public, provided, that the Company is given written notice by such Holder at the
time of or within a reasonable time after said transfer, stating the name and
address of said transferee or assignee and identifying the securities with
respect to which such registration rights are being assigned. The Company may
prohibit the transfer of any Holders' rights under this Section 1.9 to any
proposed transferee or assignee who the Company reasonably believes is a
competitor of the Company.
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1.10 Blackout Notice.
(a) The Company shall promptly (and, in any event, by
the next Business Day) provide each Holder of Registrable Securities covered by
a Shelf Registration (or other Registration Statement as applicable) written
notice, at any time when a prospectus relating thereto is required to be
delivered under the Securities Act, of the happening of any event as a result of
which the prospectus included in such Shelf Registration (or other Registration
Statement as applicable), as then in effect, includes an untrue statement of a
material fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of the
circumstances then existing (collectively, a "Blackout Notice").
(b) Upon receipt of such Blackout Notice from the
Company, the Holder agrees to the Holder Obligations set forth in Section 1.11.
(c) Upon delivery of such Blackout Notice by the
Company, the Company agrees to promptly prepare and furnish to such selling
Holder a reasonable number of copies of a supplement to or an amendment of such
prospectus or any prospectus supplement or material incorporated by reference
therein as may be necessary so that, as thereafter delivered to the purchasers
of such Registrable Securities, such prospectus or any prospectus supplement or
material incorporated by reference therein shall not include 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 in light of
the circumstances then existing and so that such prospectus or prospectus
supplement or registration statement or material incorporated by reference
therein, as amended or supplemented, will comply with the law.
1.11 Holder Obligations. Upon receipt of any Blackout Notice,
the Holder agrees that it shall (i) maintain the confidentiality of the
information contained in the Blackout Notice, (ii) forthwith discontinue
disposition of Registrable Securities pursuant to the Shelf Registration (or
other Registration Statement as applicable) until the Holder's receipt of copies
of the supplemented or amended prospectus, and, (iii) if so directed by the
Company, deliver to the Company (at the Company's expense) all copies (other
than permanent file copies) in its possession of the prospectus covering such
Registrable Securities current at the time of receipt of such notice. In the
event that the Holder is required to discontinue or refrain from disposition of
the Registrable Securities for more than 30 days in any 365-day period, the
Company shall be deemed in material breach of this Agreement.
2. General.
2.1 Waivers and Amendments. With the written consent of the
record or beneficial holders of at least a majority of the Registrable
Securities, the obligations of the Company and the rights of the Holders of the
Registrable Securities under this agreement may be waived (either generally or
in a particular instance, either retroactively or prospectively, and either for
a specified period of time or indefinitely), and with the same consent the
Company,
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when authorized by resolution of its Board of Directors, may enter into a
supplementary agreement for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this Agreement; provided,
however, that no such modification, amendment or waiver shall reduce the
aforesaid percentage of Registrable Securities without the consent of all of the
Holders of the Registrable Securities. Upon the effectuation of each such
waiver, consent, agreement of amendment or modification, the Company shall
promptly give written notice thereof to the record holders of the Registrable
Securities who have not previously consented thereto in writing. This Agreement
or any provision hereof may be changed, waived, discharged or terminated only by
a statement in writing signed by the party against which enforcement of the
change, waiver, discharge or termination is sought, except to the extent
provided in this Section 2.1.
2.2 Governing Law. This Agreement shall be governed in all
respects by the laws of the State of California as such laws are applied to
agreements between California residents entered into and to be performed
entirely within California.
2.3 Successors and Assigns. Except as otherwise expressly
provided herein, the provisions hereof shall inure to the benefit of, and be
binding upon, the successors, assigns, heirs, executors and administrators of
the parties hereto.
2.4 Entire Agreement. Except as set forth below, this Agreement
and the other documents delivered pursuant hereto constitute the full and entire
understanding and agreement between the parties with regard to the subjects
hereof and thereof.
2.5 Notices, etc. All notices and other communications required
or permitted hereunder shall be in writing and shall be mailed by first class
mail, postage prepaid, certified or registered mail, return receipt requested,
addressed (a) if to Holder, at such Holder's address as set forth below, or at
such other address as such Holder shall have furnished to the Company in
writing, or (b) if to the Company, at the Company's address set forth below, or
at such other address as the Company shall have furnished to the Holder in
writing.
2.6 Severability. In case any provision of this Agreement shall
be invalid, illegal, or unenforceable, the validity, legality and enforceability
of the remaining provisions of this Agreement or any provision of the other
Agreements shall not in any way be affected or impaired thereby.
2.7 Titles and Subtitles. The titles of the sections and
subsections of this Agreement are for convenience of reference only and are not
to be considered in construing this Agreement.
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2.8 Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
PURCHASER COMPANY
SILICON VALLEY BANK MTI TECHNOLOGY CORPORATION
By: /s/ Xxxxxxx X. X'Xxxxxxx By: /s/ Xxxx X. Xxxxx, XX
-------------------------------- ---------------------------------
Name: Xxxxxxx X. X'Xxxxxxx Name: Xxxx X. Xxxxx, XX
------------------------------ -------------------------------
(print) (print)
Title: Vice President and Title: Chairman of the Board,
Regional Market Manager President or Vice President
Address: Address:
Silicon Valley Bank MTI Technology Corporation
Attn: Treasury Department 0000 X. Xx Xxxxx Xxxxxx
0000 Xxxxxx Xxxxx Xxxxxxx, XX 00000
Xxxxx Xxxxx, XX 00000
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