REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made
and entered into as of September 9, 2003 between Openwave Systems Inc., a
Delaware corporation (the "Company"), and Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated (the "Initial Purchaser"), pursuant to the
Purchase Agreement, dated September 3, 2003 (the "Purchase Agreement"), between
the Company and the Initial Purchaser. In order to induce the Initial Purchaser
to enter into the Purchase Agreement, the Company has agreed to provide the
registration rights set forth in this Agreement. The execution of this Agreement
is a condition to the closing under the Purchase Agreement.
The Company agrees with the Initial Purchaser, (i) for its
benefit as Initial Purchaser and (ii) for the benefit of the beneficial owners
(including the Initial Purchaser) from time to time of the Registrable
Securities (as defined herein) (each of the foregoing a "Holder" and together
the "Holders"), as follows:
SECTION 1. Definitions. Capitalized terms used herein without
definition shall have their respective meanings set forth in the Purchase
Agreement. In addition to the terms that are defined elsewhere in this
Agreement, the following terms shall have the following meanings:
"Additional Interest Amount" has the meaning specified in
Section 2(e) hereof.
"Additional Interest Accrual Period" has the meaning specified
in Section 2(e) hereof.
"Additional Interest Payment Date" means each March 9th and
September 9th.
"Affiliate", with respect to any specified person, has the
meaning specified in Rule 144.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday that is not a day on which banking institutions in The City of New
York are authorized or obligated by law or executive order to close.
"Common Stock" means any shares of the common stock, $0.001
par value, of the Company, together with the rights evidenced by such common
stock as and to the extent provided in the Rights Agreement, dated as of August
8, 2000, between the Company and U.S. Stock Transfer Corporation, and any other
shares of common stock as may constitute "Common Stock" for purposes of the
Indenture, including the Underlying Common Stock.
"Company" has the meaning specified in the first paragraph of
this Agreement.
"Conversion Price" has the meaning assigned to such term in
the Indenture.
"Deferral Notice" has the meaning specified in Section 3(h)
hereof.
"Deferral Period" has the meaning specified in Section 3(h)
hereof.
"Effectiveness Deadline Date" has the meaning specified in
Section 2(a) hereof.
"Effectiveness Period" means the period commencing on the date
hereof and ending on the earliest date on which all Registrable Securities cease
to be Registrable Securities.
"Event" has the meaning specified in Section 2(e) hereof.
"Event Date" has the meaning specified in Section 2(e) hereof.
"Event Termination Date" has the meaning specified in Section
2(e) hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC promulgated thereunder.
"Filing Deadline Date" has the meaning specified in Section
2(a) hereof.
"Holder" has the meaning specified in the second paragraph of
this Agreement.
"Indenture" means the Indenture dated as of the date hereof,
as amended from time to time, between the Company and U.S. Bank National
Association, as trustee, pursuant to which the Notes are being issued.
"Initial Purchaser" has the meaning specified in the first
paragraph of this Agreement.
"Initial Shelf Registration Statement" has the meaning
specified in Section 2(a) hereof.
"Issue Date" means September 9, 2003.
"Material Event" has the meaning specified in Section 3(h)
hereof.
"Notes" means the Convertible Subordinated Notes due 2008 of
the Company to be purchased pursuant to the Purchase Agreement.
"Notice and Questionnaire" means a written notice delivered to
the Company containing substantially the information called for by the Form of
Selling Securityholder Notice and Questionnaire attached as Annex A to the
Offering Memorandum of the Company dated September 2, 2003 relating to the
Notes, as such notice may be amended to ensure compliance with applicable law.
"Notice Holder" means on any date, any Holder that has
delivered a Notice and Questionnaire to the Company on or prior to such date.
"Prospectus" means the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any amendment or prospectus
supplement, including post-effective amendments, and all materials incorporated
by reference or explicitly deemed to be incorporated by reference in such
Prospectus.
"Purchase Agreement" has the meaning specified in the first
paragraph of this Agreement.
"Record Holder" means, with respect to any Additional Interest
Payment Date relating to any Note or shares of Underlying Common Stock as to
which any Additional Interest Amount has accrued, the registered holder of such
Note or such shares of Underlying Common Stock, as the case may be, on the
February 23rd or August 23rd, as the case may be, immediately prior to the next
succeeding Additional Interest Payment Date.
"Registrable Securities" means the Notes until such Notes have
been converted into the Underlying Common Stock and at all times subsequent to
any such conversion, the Underlying Common Stock and any securities into or for
which such securities have been converted or exchanged, and any security issued
with respect thereto upon any stock dividend, split, merger or similar event
until, in the case of any such security, the earliest of (i) its effective
registration under the Securities Act and resale in accordance with the
Registration Statement covering it, (ii) expiration of the holding period that
would be applicable thereto under Rule 144(k) were it not held by an Affiliate
of the Company, (iii) its sale to the public pursuant to Rule 144, or (iv) the
date such security ceases to be outstanding.
"Registration Expenses" has the meaning specified in Section 5
hereof.
"Registration Statement" means any registration statement of
the Company that covers any of the Registrable Securities pursuant to the
provisions of this Agreement, including the Prospectus, amendments and
supplements to such registration statement, including post-effective amendments,
all exhibits, and all materials incorporated by reference or explicitly deemed
to be incorporated by reference in such registration statement.
"Restricted Securities" has the meaning assigned to such term
in Rule 144.
"Rule 144" means Rule 144 under the Securities Act, as such
Rule may be amended from time to time, or any similar or successor rule or
regulation hereafter adopted by the SEC having substantially the same effect as
such Rule.
"Rule 144A" means Rule 144A under the Securities Act, as such
Rule may be amended from time to time, or any similar or successor rule or
regulation hereafter adopted by the SEC having substantially the same effect as
such Rule.
"SEC" means the United States Securities and Exchange
Commission and any successor agency.
"Securities" has the meaning specified in the introductory
paragraphs hereto.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated by the SEC thereunder.
"Shelf Registration Statement" has the meaning specified in
Section 2(a) hereof.
"Subsequent Shelf Registration Statement" has the meaning
specified in Section 2(b) hereof.
"TIA" means the Trust Indenture Act of 1939, as amended.
"Trustee" means U.S. Bank National Association (or any
successor entity), the Trustee under the Indenture.
"Underlying Common Stock" means the shares of Common Stock
into which the Notes are convertible or issued upon any such conversion.
SECTION 2. Shelf Registration.
(a) The Company shall prepare and file or cause to be prepared
and filed with the SEC no later than a date which is ninety (90) days after the
Issue Date (the "Filing Deadline Date") a Registration Statement for an offering
to be made on a delayed or continuous basis pursuant to Rule 415 of the
Securities Act (a "Shelf Registration Statement") registering the resale from
time to time by Holders of all of the Registrable Securities (the "Initial Shelf
Registration Statement"). The Initial Shelf Registration Statement shall be on
Form S-3 or another appropriate form permitting registration of such Registrable
Securities for resale by such Holders in accordance with the methods of
distribution reasonably elected by the Holders and set forth in the Initial
Shelf Registration Statement and shall comply in all material respects with the
requirements of Form S-3 or other appropriate form and the requirements of
Regulations S-T under the Securities Act. The Company shall use its reasonable
best efforts to cause the Initial Shelf Registration Statement to be declared
effective under the Securities Act no later than the date (the "Effectiveness
Deadline Date") that is one-hundred and eighty (180) days after the Issue Date,
and to keep, subject to Section 3(h) hereof, the Initial Shelf Registration
Statement (or any Subsequent Shelf Registration Statement) continuously
effective under the Securities Act until the expiration of the Effectiveness
Period. Each Holder that becomes a Notice Holder on or prior to the date ten
(10) Business Days prior to the time that the Initial Shelf Registration
Statement becomes effective shall be named as a selling securityholder in the
Initial Shelf Registration Statement and the related Prospectus in such a manner
as to permit such Holder to deliver such Prospectus to purchasers of Registrable
Securities in accordance with applicable law (other than laws not generally
applicable to all such Holders). No Holder that is not a Notice Holder shall be
entitled to be named as a selling securityholder, or have the Registrable
Securities held by it covered, in a Shelf Registration Statement.
(b) If the Initial Shelf Registration Statement or any
Subsequent Shelf Registration Statement ceases to be effective for any reason at
any time during the Effectiveness Period (other than because all Registrable
Securities registered thereunder shall have been resold pursuant thereto or
shall have otherwise ceased to be Registrable Securities and other than during a
Deferral Period), the Company shall use its reasonable best efforts to obtain
the prompt withdrawal of any order suspending the effectiveness thereof,
including, if reasonably necessary, by amending the Shelf Registration Statement
in a manner reasonably expected by the Company to obtain the withdrawal of the
order suspending the effectiveness thereof, or file an additional Shelf
Registration Statement covering all of the securities that as of the date of
such filing are Registrable Securities (a "Subsequent Shelf Registration
Statement"). If a Subsequent Shelf Registration Statement is filed, the Company
shall use its reasonable best efforts to cause the Subsequent Shelf Registration
Statement to become effective as promptly as is reasonably practicable after
such filing or, if filed during a Deferral Period, after the expiration of such
Deferral Period, and to keep such Registration Statement (or subsequent Shelf
Registration Statement), subject to Section 3(h) hereof, continuously effective
until the end of the Effectiveness Period.
(c) The Company shall supplement and 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, if required by the Securities Act or as necessary to
name a Notice Holder as a selling securityholder pursuant to Section 2(d) below.
(d) Each Holder of Registrable Securities agrees that if such
Holder wishes to sell Registrable Securities pursuant to a Shelf Registration
Statement and related Prospectus, it will do so only in accordance with this
Section 2(d) and Section 3(h) and Section 4. Each Holder of Registrable
Securities wishing to sell Registrable Securities pursuant to an effective Shelf
Registration Statement and related Prospectus agrees to deliver a Notice and
Questionnaire to the Company at least ten (10) Business Days prior to any
intended distribution of Registrable Securities under the Shelf Registration
Statement and to notify the Company in writing of such proposed sale within two
(2) business days prior to such proposed sale. Each Holder of Registrable
Securities who elects to sell Registrable Securities pursuant to a Shelf
Registration Statement agrees by submitting a Notice and Questionnaire to the
Company that it will be bound by the terms and conditions of the Notice and
Questionnaire and this Agreement. From and after the date the Initial Shelf
Registration Statement is declared effective, the Company shall, as promptly as
is reasonably practicable after the date a fully completed Notice and
Questionnaire is received by the Company, (i) if required by applicable law,
file with the SEC a post-effective amendment to the Shelf Registration Statement
or prepare and, if required by applicable law, file a supplement to the related
Prospectus or a supplement or amendment to any document incorporated therein by
reference or file any other document required by the SEC so that the Holder
delivering such Notice and Questionnaire is named as a selling securityholder in
the Shelf Registration Statement and the related Prospectus in such a manner as
to permit such Holder to deliver such Prospectus to purchasers of the
Registrable Securities in accordance with applicable law and, if the Company
shall file a post-effective amendment to the Shelf Registration Statement, use
its reasonable best efforts to cause such post-effective amendment to be
declared effective under the Securities Act as promptly as is reasonably
practicable, (ii) provide such Holder copies of any documents filed pursuant to
Section 2(d)(i) and (iii) notify such Holder as promptly as is reasonably
practicable after the effectiveness under the Securities Act of any
post-effective amendment filed pursuant to Section 2(d)(i); provided that if
such Notice and Questionnaire is delivered during a Deferral Period, the Company
shall so inform the Holder delivering such Notice and Questionnaire and shall
take the actions set forth in clauses (i), (ii) and (iii) above upon expiration
of the Deferral Period in accordance with Section 3(h). Notwithstanding anything
contained herein to the contrary, the Company shall be under no obligation to
name any Holder that is not a Notice Holder as a selling securityholder in any
Registration Statement or related Prospectus.
(e) The parties hereto agree that the Holders of Registrable
Securities will suffer damages, and that it would not be feasible to ascertain
the extent of such damages with precision, if, other than as permitted hereunder
(i) the Initial Shelf Registration Statement has not been filed on or prior to
the Filing Deadline Date, (ii) the Initial Shelf Registration Statement has not
been declared effective under the Securities Act on or prior to the
Effectiveness Deadline Date, or (iii) the aggregate duration of Deferral Periods
in any period exceeds the number of days permitted in respect of such period
pursuant to Section 3(h) hereof (each of the events of a type described in any
of the foregoing clauses (i) through (iii) is individually referred to herein as
an "Event," and the Filing Deadline Date in the case of clause (i), the
Effectiveness Deadline Date in the case of clause (ii), and the date on which
the aggregate duration of Deferral Periods in any period exceeds the number of
days permitted by Section 3(h) hereof in the case of clause (iii), being
referred to herein as an "Event Date"). Events shall be deemed to continue until
the "Event Termination Date," which shall be the following dates with respect to
the respective types of Events: the date the Initial Shelf Registration
Statement is filed in the case of an Event of the type described in clause (i),
the date the Initial Shelf Registration Statement is declared effective under
the Securities Act in the case of an Event of the type described in clause (ii),
and termination of the Deferral Period that caused the limit on the aggregate
duration of Deferral Periods in a period set forth in Section 3(h) to be
exceeded in the case of the commencement of an Event of the type described in
clause (iii).
Accordingly, commencing on (and including) any Event Date and
ending on (but excluding) the respective Event Termination Date (a "Additional
Interest Accrual Period"), the Company agrees to pay, as liquidated damages and
not as a penalty, an amount (the "Additional Interest Amount"), payable on the
Additional Interest Payment Dates to Record Holders of then outstanding Notes
that are Registrable Securities or of then outstanding shares of Underlying
Common Stock issued upon conversion of Notes that are Registrable Securities, as
the case may be, accruing, for each portion of such Additional Interest Accrual
Period beginning on and including a Additional Interest Payment Date (or, in
respect of the first time that the Liquidation Damages Amount is to be paid to
Holders on a Additional Interest Payment Date as a result of the occurrence of
any particular Event, from the Event Date) and ending on but excluding the first
to occur of (A) the date of the end of the Additional Interest Accrual Period or
(B) the next Additional Interest Payment Date, at a rate per annum equal to one
quarter of one percent (0.25%) for the first ninety (90) day period from the
Event Date, and thereafter at a rate per annum equal to one half of one percent
(0.50%) of the aggregate principal amount of such Notes or the aggregate
Conversion Price of the shares of Underlying Common Stock (determined as of the
Business Day immediately preceding the next Additional Interest Payment Date),
as the case may be; provided, that in the case of an Additional Interest Accrual
Period that is in effect solely as a result of an Event of the type described in
clause (iii) of the preceding paragraph, such Additional Interest Amount shall
be paid only to the Notice Holders; and provided further, that any Additional
Interest Amount accrued with respect to any Note or portion thereof called for
redemption on a redemption date or converted into Underlying Common Stock on a
conversion date prior to the Additional Interest Payment Date shall, in any such
event, be paid instead to the Holder who submitted such Note or portion thereof
for redemption or conversion on the applicable redemption date or conversion
date, as the case may be, on such date (or promptly following the conversion
date, in the case of conversion). Notwithstanding the foregoing, no Additional
Interest Amounts shall accrue as to any Registrable Security from and after the
earlier of (x) the date such security is no longer a Registrable Security and
(y) expiration of the Effectiveness Period. The rate of accrual of the
Additional Interest Amount with respect to any period shall not exceed the rate
provided for in this paragraph notwithstanding the occurrence of multiple
concurrent Events. Following the cure of all Events requiring the payment by the
Company of Additional Interest Amounts to the Holders of Registrable Securities
pursuant to this Section, the accrual of Additional Interest Amounts will cease
(without in any way limiting the effect of any subsequent Event requiring the
payment of the Additional Interest Amount by the Company).
The Trustee, subject to the applicable provisions of the
Indenture, shall be entitled, but shall not be obligated, on behalf of Holders
of Notes or Underlying Common Stock, to seek any available remedy for the
enforcement of this Agreement, including for the payment of any Additional
Interest Amount. Notwithstanding the foregoing, the parties agree that the sole
monetary damages payable for a violation of the terms of this Agreement with
respect to which liquidated damages are expressly provided shall be such
Additional Interest Amount. Nothing shall preclude a Notice Holder or Holder of
Registrable Securities from pursuing or obtaining specific performance or other
equitable relief with respect to this Agreement.
All of the Company's obligations set forth in this Section
2(e) that are outstanding with respect to any Registrable Security at the time
such security ceases to be a Registrable Security shall survive until such time
as all such obligations with respect to such security have been satisfied in
full (notwithstanding termination of this Agreement pursuant to Section 8(m)).
The parties hereto agree that the liquidated damages provided
for in this Section 2(e) constitute a reasonable estimate of the damages that
may be incurred by Holders of Registrable Securities by reason of the failure of
the Shelf Registration Statement to be filed or declared effective or available
for effecting resales of Registrable Securities in accordance with the
provisions hereof.
SECTION 3. Registration Procedures. In connection with the
registration obligations of the Company under Section 2 hereof, during the
Effectiveness Period the Company shall:
(a) Before filing any Registration Statement or Prospectus or
any amendments or supplements (other than supplements that do nothing more
substantive than name one or more Notice Holders as selling securityholders)
thereto with the SEC, furnish to the Initial Purchaser copies of all such
documents proposed to be filed at least three (3) Business Days prior to such
filing
(b) Subject to Section 3(h), prepare and file with the SEC
such amendments and post-effective amendments to each Registration Statement as
may be necessary to keep such Registration Statement continuously effective for
the Effectiveness Period; cause the related Prospectus to be supplemented by any
required Prospectus supplement, and as so supplemented to be filed pursuant to
Rule 424 (or any similar provision then in force) under the Securities Act; and
use its reasonable efforts to comply with the provisions of the Securities Act,
the Exchange Act and the rules and regulations thereunder applicable to it with
respect to the disposition of all securities covered by such Registration
Statement during the Effectiveness Period in accordance with the intended
methods of disposition by the sellers thereof set forth in such Registration
Statement as so amended or such Prospectus as so supplemented.
(c) As promptly as reasonably practicable give notice to the
Notice Holders and the Initial Purchaser (i) at least three business days prior
to filing, when any Prospectus, Prospectus Supplement, Registration Statement
(other than the Initial Registration Statement) or post-effective amendment to a
Registration Statement will be filed with the SEC, provided, however, that the
Company shall not be required by this clause (i) to notify (A) the Initial
Purchaser of the filing of a Prospectus supplement that does nothing more
substantive than name one or more Notice Holders as selling security holders or
(B) any Notice Holder of the filing of a Prospectus supplement that does nothing
more substantive than name one or more other Notice Holders as selling
securityholders, (ii) with respect to a Registration Statement or any
post-effective amendment when the same has been declared effective, (iii) of any
request, following the effectiveness of the Initial Shelf Registration Statement
under the Securities Act, by the SEC or any other federal or state governmental
authority for amendments or supplements to any Registration Statement or related
Prospectus or for additional information, (iv) of the issuance by the SEC or any
other federal or state governmental authority of any stop order or injunction
suspending or enjoining the use of any Prospectus or the effectiveness of any
Registration Statement or the initiation or threatening of any proceedings for
that purpose, (v) if, between the effective date of a Registration Statement and
the closing of any sale of Registrable Securities covered thereby, the
representations and warranties of the Company contained in any underwriting
agreement, securities sales agreement or other similar agreement, if any,
relating to the offering cease to be true and correct in all material respects,
(vi) of the receipt by the Company of any notification with respect to the
suspension of the qualification or exemption from qualification of any of the
Registrable Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, (vii) of the occurrence of (but
not the nature of or details concerning) a Material Event; provided, that no
notice by the Company shall be required pursuant to this clause (vii) if the
event that the Company either promptly files a supplement to update the
Prospectus or a Form 8-K or other appropriate Exchange Act report that is
incorporated by reference into the Registration Statement, which in any such
case, contains the requisite information with respect to such Material Event
that results in such Registration Statement no longer containing any untrue
statement of a material fact or omitting to state a material fact necessary to
make the statement contained therein not misleading) and (viii) of the
determination by the Company that a post-effective amendment to a Registration
Statement will be filed with the SEC, which notice may, at the discretion of the
Company (or as required pursuant to Section 3(h)), state that it constitutes a
Deferral Notice, in which event the provisions of Section 3(h) shall apply.
(d) Use its reasonable best efforts to obtain the withdrawal
of any order suspending the effectiveness of a Registration Statement or the
lifting of any suspension of the qualification (or exemption from qualification)
of any of the Registrable Securities for sale in any jurisdiction in which they
have been qualified for sale, in either case as promptly as reasonably
practicable or, if any such order or suspension is made effective during any
Deferral Period, as promptly as reasonably practicable after the expiration of
such Deferral Period.
(e) As promptly as reasonably practicable after the filing of
such documents with the SEC, furnish to each Notice Holder and the Initial
Purchaser, upon their request and without charge, at least one (1) conformed
copy of the Registration Statement and any amendment thereto, including
financial statements, but excluding schedules, all documents incorporated or
deemed to be incorporated therein by reference and all exhibits if such
schedules, documents and exhibits are available via the SEC's XXXXX system.
(f) During the Effectiveness Period (except during such
periods that a Deferral Notice is outstanding and has not been revoked), deliver
to each Notice Holder in connection with any sale of Registrable Securities
pursuant to a Registration Statement, without charge, as many copies of the
Prospectus or Prospectuses relating to such Registrable Securities and any
amendment or supplement thereto and such other documents as such Notice Holder
may reasonably request, including financial statements and schedules and, if
such Notice Holder so requests, all exhibits in order to facilitate the public
sale or other disposition of the Registrable Securities; and the Company hereby
consents (except during such periods that a Deferral Notice is outstanding and
has not been revoked) to the use of such Prospectus or each amendment or
supplement thereto by each Notice Holder in connection with any offering and
sale of the Registrable Securities covered by such Prospectus or any amendment
or supplement thereto in the manner set forth therein.
(g) Subject to Section 3(h), prior to any public offering of
the Registrable Securities pursuant to the Shelf Registration Statement, use
reasonable efforts to register or qualify or cooperate with the Notice Holders
in connection with the registration or qualification (or exemption therefrom) of
such Registrable Securities for offer and sale under the securities or Blue Sky
laws of such jurisdictions within the United States as any Notice Holder
reasonably requests in writing (which request may be included in the Notice and
Questionnaire), it being agreed that no such registration or qualification will
be made unless so requested; prior to any public offering of the Registrable
Securities pursuant to the Shelf Registration Statement, use reasonable efforts
to keep each such registration or qualification (or exemption therefrom)
effective during the Effectiveness Period in connection with such Notice
Holder's offer and sale of Registrable Securities pursuant to such registration
or qualification (or exemption therefrom) and do any and all other acts or
things reasonably necessary to enable the disposition in such jurisdictions of
such Registrable Securities in the manner set forth in the relevant Registration
Statement and the related Prospectus; provided that the Company will not be
required to (i) qualify as a foreign corporation or as a dealer in securities in
any jurisdiction where it is not otherwise qualified, or (ii) take any action
that would subject it to general service of process in suits or to taxation in
any such jurisdiction where it is not then so subject.
(h) Upon (A) the issuance by the SEC of a stop order
suspending the effectiveness of the Shelf Registration Statement or the
initiation of proceedings with respect to the Shelf Registration Statement under
Section 8(d) or 8(e) of the Securities Act, (B) the occurrence of any event or
the existence of any fact (a "Material Event") as a result of which any
Registration Statement shall contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading, or any Prospectus shall contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, or (C) the
occurrence or existence of any development, event, fact, situation or
circumstance relating to the Company that, in the discretion of the Company,
makes it appropriate to suspend the availability of the Shelf Registration
Statement and the related Prospectus, (i) in the case of clause (B) above,
subject to the next sentence, as promptly as practicable prepare and file a
post-effective amendment to such Registration Statement or a supplement to the
related Prospectus or any document incorporated therein by reference or file any
other required document that would be incorporated by reference into such
Registration Statement and Prospectus so that such Registration Statement does
not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, and such Prospectus does not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, as thereafter
delivered to the purchasers of the Registrable Securities being sold thereunder,
and, in the case of a post-effective amendment to a Registration Statement,
subject to the next sentence, use its reasonable best efforts to cause it to be
declared effective as promptly as is reasonably practicable, and (ii) give
notice to the Notice Holders as promptly as is reasonably practicable that the
availability of the Shelf Registration Statement is suspended (a "Deferral
Notice") and, upon receipt of any Deferral Notice, each Notice Holder agrees not
to sell any Registrable Securities pursuant to the Registration Statement until
such Notice Holder's receipt of copies of the supplemented or amended Prospectus
provided for in clause (i) above, or until it is advised in writing by the
Company that the Prospectus may be used, and has received copies of any
additional or supplemental filings that are incorporated or deemed incorporated
by reference in such Prospectus. The Company will use its reasonable best
efforts to ensure that the use of the Prospectus may be resumed (x) in the case
of clause (A) above, as promptly as is reasonably practicable, (y) in the case
of clause (B) above, as soon as, in the reasonable judgment of the Company,
public disclosure of such Material Event would not be prejudicial to or contrary
to the interests of the Company or, if necessary to avoid unreasonable burden or
expense, as soon as reasonably practicable thereafter and (z) in the case of
clause (C) above, as soon as, in the discretion of the Company, such suspension
is no longer appropriate. So long as the period during which the availability of
the Registration Statement and any Prospectus is suspended (the "Deferral
Period") does not exceed forty-five (45) days during any three (3) month period
or one hundred twenty (120) days during any twelve (12) month period, the
Company shall not incur any obligation to pay liquidated damages pursuant to
Section 2(e).
(i) If reasonably requested in writing in connection with a
disposition of Registrable Securities in an amount of at least $5,000,000
pursuant to a Registration Statement, make reasonably available for inspection
during normal business hours by a representative for the Notice Holders of such
Registrable Securities and any broker-dealers, attorneys and accountants
retained by such Notice Holders, all relevant financial and other records,
pertinent corporate documents and properties of the Company and its
subsidiaries, and cause the appropriate executive officers, directors and
designated employees of the Company and its subsidiaries to make reasonably
available for inspection during normal business hours on reasonable notice all
relevant information reasonably requested by such representative for the Notice
Holders or any such broker-dealers, attorneys or accountants in connection with
such disposition, in each case as is customary and reasonably necessary for
similar "due diligence" examinations; provided, however, that such persons shall
first agree in writing with the Company that any information that is reasonably
designated by the Company in writing as confidential at the time of delivery of
such information shall be kept confidential by such persons and shall be used
solely for the purposes of exercising rights under this Agreement, unless (i)
disclosure of such information is required by court or administrative order or
is necessary to respond to inquiries of regulatory authorities; provided,
however, that such persons shall as soon as reasonably practicable provide
written notice to the Company of any request by any such court or regulatory
authority for any such confidential information of the Company in order to allow
the Company a reasonable amount of time to seek an appropriate protective order
to prevent the disclosure of such information, (ii) disclosure of such
information is required by law (including any disclosure requirements pursuant
to federal securities laws in connection with the filing of any Registration
Statement or the use of any Prospectus referred to in this Agreement), (iii)
such information becomes generally available to the public other than as a
result of a disclosure or failure to safeguard by any such person or (iv) such
information becomes available to any such person from a source other than the
Company and such source is not bound by a confidentiality agreement or other
obligation of confidentiality; and provided further that the foregoing
inspection and information gathering shall, to the greatest extent possible, be
coordinated on behalf of all the Notice Holders and the other parties entitled
thereto by the counsel referred to in Section 5.
(j) Comply in all material respects with all applicable rules
and regulations of the SEC and make generally available to its securityholders
earning statements (which need not be audited) satisfying the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule
promulgated under the Securities Act) no later than the time period prescribed
by the SEC for filing a Form 10-Q after the end of any 12-month period (or the
time period prescribed by the SEC for filing a Form 10-K after the end of any
12-month period if such period is a fiscal year) commencing on the first day of
the first fiscal quarter of the Company commencing after the effective date of a
Registration Statement, which statements shall cover said 12-month periods.
(k) Unless the Securities are in book-entry form, reasonably
cooperate with each Notice Holder to facilitate the timely preparation and
delivery of certificates representing Registrable Securities sold pursuant to a
Registration Statement and not bearing any restrictive legends (unless required
by applicable law), and cause such Registrable Securities to be in such
denominations as are permitted by the Indenture and registered in such names as
such Notice Holder may request in writing at least five (5) Business Days prior
to any sale of such Registrable Securities.
(l) Provide a CUSIP number for all Registrable Securities
covered by each Registration Statement not later than the effective date of such
Registration Statement and provide the Trustee for the Notes and the transfer
agent for the Common Stock with certificates for the Registrable Securities that
are in a form eligible for deposit with The Depository Trust Company.
(m) Reasonably cooperate and assist in any filings required to
be made with the NASD and in the performance of any due diligence investigation
by any underwriter and its counsel (including any "qualified independent
underwriter" that is required to be retained in accordance with the rules and
regulations of the NASD) required in connection therewith.
(n) Upon (i) the filing of the Initial Shelf Registration
Statement and (ii) the effectiveness of the Initial Shelf Registration
Statement, announce the same, in each case by release to Businesswire, Reuters
Economic Services, Bloomberg Business News or any other means of dissemination
reasonably expected to make such information known publicly.
(o) Take all actions necessary, and reasonably requested by
the Holders of a majority of the Registrable Securities being sold, to dispose
of such Registrable Securities.
(p) Cause the Indenture to be qualified under the TIA not
later than the effective date of any Registration Statement; and in connection
therewith, cooperate with the Trustee 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 reasonable 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.
SECTION 4. Holder's Obligations. Each Holder agrees, by
acquisition of the Registrable Securities, that no Holder of Registrable
Securities shall be entitled to sell any of such Registrable Securities pursuant
to a Registration Statement or to receive a Prospectus relating thereto, unless
such Holder has furnished the Company with a Notice and Questionnaire as
required pursuant to Section 2(d) hereof (including the information required to
be included in such Notice and Questionnaire) and the information set forth in
the next sentence and such Holder provides written notice of a proposed sale to
the Company within two (2) business days prior to such sale. Each Notice Holder
agrees promptly to furnish to the Company in writing all information required to
be disclosed in order to make the information previously furnished to the
Company by such Notice Holder not misleading, any other information regarding
such Notice Holder and the distribution of such Registrable Securities as may be
required to be disclosed in the Registration Statement under applicable law or
pursuant to SEC comments and any information otherwise requested by the Company.
Any sale of any Registrable Securities by a Holder shall constitute a
representation and warranty by such Holder that the information relating to such
Holder and its plan of distribution is as set forth in the Prospectus delivered
by such Holder in connection with such disposition, that such Prospectus does
not as of the time of such sale contain any untrue statement of a material fact
provided by or relating to such Holder or its plan of distribution and that such
Prospectus does not as of the time of such sale omit to state any material fact
provided by or relating to such Holder or its plan of distribution necessary to
make the statement in the Prospectus, in light of the circumstances under which
they were made, not misleading. Each Holder further agrees, following
termination of the Effectiveness Period, to notify the Company, within five (5)
Business Days of a request, of the amount of Registrable Securities sold
pursuant to the Registration Statement and, in the absence of a response, the
Company may assume that all of the Holder's Registrable Securities were so sold.
SECTION 5. Registration Expenses. The Company shall bear all
fees and expenses incurred in connection with the performance by the Company of
its obligations under Sections 2 and 3 of this Agreement whether or not any of
the Registration Statements are declared effective. Such fees and expenses shall
include, without limitation, (i) all registration and filing fees (including,
without limitation, fees and expenses (x) with respect to filings required to be
made with the National Association of Securities Dealers, Inc. and (y) of
compliance with federal and state securities or Blue Sky laws to the extent such
filings or compliance are required pursuant to this Agreement, (ii) printing
expenses (including, without limitation, expenses of printing certificates for
Registrable Securities in a form eligible for deposit with The Depository Trust
Company), (iii) duplication expenses relating to copies of any Registration
Statement or Prospectus delivered to any Holders hereunder, (iv) fees and
disbursements of counsel for the Company in connection with the Shelf
Registration Statement, and (v) reasonable fees and disbursements of the Trustee
and its counsel and of the registrar and transfer agent for the Common Stock. In
addition, the Company shall pay the internal expenses of the Company (including,
without limitation, all salaries and expenses of officers and employees
performing legal or accounting duties), the expense of any annual audit, the
fees and expenses incurred in connection with the listing, if any, by the
Company of the Registrable Securities on any securities exchange on which the
same securities of the Company are then listed and the fees and expenses of any
person, including special experts, retained by the Company. Notwithstanding the
provisions of this Section 5, each seller of Registrable Securities shall pay
all selling expenses, commissions, discounts and expenses of counsel except to
the extent set forth in this Section 5, and all registration expenses to the
extent required by applicable law.
SECTION 6. Indemnification; Contribution.
(a) The Company agrees to indemnify and hold harmless the
Initial Purchaser and each Holder of Registrable Securities and each person, if
any, who controls the Initial Purchaser or any holder of Registrable Securities
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), or the omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact included in any preliminary prospectus or the Prospectus
(or any amendment or supplement thereto), or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, provided
that (subject to Section 6(d) below) any such settlement is effected
with the prior written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel), reasonably incurred
in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or
(ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information, including, without limitation,
the Notice and Questionnaire furnished to the Company by or on behalf of the
Initial Purchaser or such Holder of Registrable Securities expressly for use in
the Registration Statement (or any amendment thereto), or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto); provided,
further, that the indemnification contained in this paragraph shall not inure to
the benefit of any indemnified party on account of any such losses, liabilities,
claims, damages or expenses caused by any untrue statement or alleged untrue
statement or omission or alleged omission made in any preliminary Prospectus
provided in each case the Company has performed its obligations under Section
3(e) hereof if either (A)(i) such indemnified party failed to send or deliver a
copy of the Prospectus with or prior to the delivery of written confirmation of
the sale by such indemnified party to the person asserting the claim from which
such losses, liabilities, claims, damages or expenses arise and (ii) the
Prospectus would have corrected such untrue statement or alleged untrue
statement or such omission or alleged omission, or (B)(x) such untrue statement
or alleged untrue statement, omission or alleged omission is corrected in an
amendment or supplement to the Prospectus and (y) having previously been
furnished by or on behalf of the Company with copies of the Prospectus as so
amended or supplemented, such indemnified party thereafter failed to deliver
such Prospectus as so amended or supplemented with or prior to the delivery of
written confirmation of the sale of a Registrable Security to the person
asserting the claim from which such losses, liabilities, claims, damages or
expenses arise.
(b) In connection with any Shelf Registration Statement in
which a Holder of Registrable Securities, including, without limitation, the
Initial Purchaser, is participating and is furnishing information relating to
such Holder of Registrable Securities to the Company in writing expressly for
use in such Registration Statement, any preliminary prospectus, the Prospectus
or any amendments or supplements thereto, the Holders of such Registrable
Securities agree, severally and not jointly, to indemnify and hold harmless the
Company, the Initial Purchaser and the other selling Holders and each person, if
any, who controls the Company, the Initial Purchaser and the other selling
Holders within the meaning of either Section 15 of the Securities Act or Section
20 of the Exchange Act, against any and all loss, liability, claim, damage and
expense described in the indemnity contained in subsection (a) of this Section,
as incurred, but only with respect to (A) untrue statements or omissions, or
alleged untrue statements or omissions, made in the Registration Statement (or
any amendment thereto) or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by or on behalf of such Holder of
Registrable Securities, or (B) a failure to deliver the Prospectus as described
in clause (A) or (B) of Section 6(a) hereof, provided the Company has provided
such Prospectus to the Holder in accordance with this Agreement or any person,
if any, who controls any such Holder of Registrable Securities, expressly for
use in the Registration Statement (or any amendment thereto) or such preliminary
prospectus or the Prospectus (or any amendment or supplement thereto).
The Initial Purchaser agrees to indemnify and hold harmless
the Company, the Holders of Registrable Securities, and each person, if any, who
controls the Company or any Holder of Registrable Securities within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act
against any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto) or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Company by or on behalf of the Initial Purchaser expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary prospectus
or the Prospectus (or any amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action or proceeding
commenced against it in respect of which indemnity may be sought hereunder, but
failure to so notify an indemnifying party shall not relieve such indemnifying
party from any liability hereunder to the extent it is not materially prejudiced
as a result thereof and in any event shall not relieve it from any liability
which it may have otherwise than on account of these indemnity provisions. The
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the reasonable fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain a separate firm as its own counsel, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party 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 party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees and
expenses of more than one firm (in addition to any local counsel) for all such
indemnified parties, and that all such reasonable fees and expenses shall be
reimbursed as they are incurred. In the event a separate firm is retained for
the Holders of Registrable Securities, and control persons of the Holders of
Registrable Securities, such firm shall be designated in writing by the Holders
of a majority (with Holders of Notes deemed to be the Holders, for purposes of
determining such majority, of the number of shares of Underlying Common Stock
into which such Notes are or would be convertible as of the date on which such
designation is made) of the Registrable Securities covered by the Registration
Statement held by Holders that are indemnified parties pursuant to Section 6(b).
In the event a separate firm is retained for the Company, and such directors,
officers and control persons of the Company, such firm shall be designated in
writing by the Company. No indemnifying party shall, without the prior written
consent of the indemnified parties, settle or compromise or consent to the entry
of any judgment with respect to any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever in respect of which indemnification or contribution could be
sought under this Section 6 (whether or not the indemnified parties are actual
or potential parties thereto), unless such settlement, compromise or consent
includes an unconditional release of each indemnified party subject thereto from
all liability arising out of such litigation, investigation, proceeding or
claim.
(d) If at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel contemplated in this Section 6, such indemnifying party agrees that
it shall be liable for any settlement of the nature contemplated by Section
6(a)(ii) effected without its written consent if (i) such settlement is entered
into more than 60 days after receipt by such indemnifying party of aforesaid
request, (ii) such indemnifying party shall have received notice of the terms of
such settlement at least 30 days prior to such settlement being entered into and
(iii) such indemnifying party shall not have reimbursed such indemnified party
in accordance with such request prior to the date of such settlement; provided,
that an indemnifying party shall not be liable for any such settlement effected
without its consent if such indemnifying party, prior to the date of such
settlement, (1) reimburses such indemnified party in accordance with such
request for the amount of such fees and expenses of counsel as the indemnifying
party believes in good faith to be reasonable, and (2) provides written notice
to the indemnified party that the indemnifying party disputes in good faith the
reasonableness of the unpaid balance of such fees and expenses.
(e) If and to the extent that the indemnification to which an
indemnified party is entitled under this Section 6 is for any reason unavailable
to or insufficient although applicable in accordance with its terms to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by and paid or payable to such indemnified party, as
incurred, in such proportion as is appropriate to reflect the relative fault of
the Company on the one hand and of the Holders participating in the offering
pursuant to the Shelf Registration Statement and the Initial Purchaser on the
other hand in connection with the statements or omissions which resulted in such
losses, liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative fault of the Company on the one hand and the
Holders participating in the offering pursuant to the Shelf Registration
Statement and the Initial Purchaser on the other hand shall be determined by
reference to, among other things, whether any such untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company or by such Holders or the
Initial Purchaser and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
Each of the Company, the Initial Purchaser and the Holders
agree that it would not be just and equitable if contribution pursuant to this
Section 6(e) were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to above in this Section 6(e). The aggregate amount of losses, liabilities,
claims, damages, and expenses incurred by an indemnified party and referred to
above in this Section 6(e) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue or alleged untrue statement or
omission or alleged omission.
Notwithstanding the provisions of this Section 6, no Holder of
any Registrable Securities nor the Initial Purchaser shall be required to
indemnify or contribute any amount in excess of the amount by which the total
price at which the Registrable Securities sold by such Holder of Registrable
Securities or by the Initial Purchaser, as the case may be, and distributed to
the public were offered to the public exceeds the amount of any damages that
such Holder of Registrable Securities or the Initial Purchaser 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 Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
SECTION 7. Information Requirements. If at any time before the
end of the Effectiveness Period the Company ceases to be required to file
reports pursuant to the Exchange Act, the Company covenants that it will upon
the reasonable request of any Holder of Registrable Securities (a) make publicly
available such information as is reasonably necessary to permit sales pursuant
to Rule 144 under the Securities Act, (b) deliver such information to a
prospective purchaser as is necessary to permit sales pursuant to Rule 144A
under the Securities Act and it will take such further action as any Holder of
Registrable Securities may reasonably request, and (c) take such further action
that is reasonable in the circumstances, in each case, to the extent required
from time to time to enable such Holder to sell its Registrable Securities
without registration under the Securities Act within the limitation of the
exemptions provided by and customarily taken in connection with sales pursuant
to (i) Rule 144 under the Securities Act, as such Rule may be amended from time
to time, (ii) Rule 144A under the Securities Act, as such Rule may be amended
from time to time, or (iii) any similar rules or regulations hereafter adopted
by the SEC. Upon the request of any Holder of Registrable Securities, the
Company will deliver to such Holder a written statement as to whether it has
complied with such requirements, unless such a statement has been included in
the Company's most recent report filed pursuant to Section 13 or 15(d) of the
Exchange Act. Notwithstanding the foregoing, nothing in this Section 7 shall be
deemed to require the Company to register any of its securities (other than the
Common Stock) under any section of the Exchange Act.
SECTION 8. Miscellaneous
(a) No Conflicting Agreements. The Company is not, as of the
date hereof, a party to, nor shall it, on or after the date of this Agreement,
enter into, any agreement with respect to the Company's securities that
conflicts with the rights granted to the Holders of Registrable Securities in
this Agreement. The Company represents and warrants that the rights granted to
the Holders of Registrable Securities hereunder do not in any way conflict with
the rights granted to the holders of the Company's securities under any other
agreements. The parties hereto agree that existing registration rights
previously granted by the Company to other holders of its Common Stock shall not
be deemed in any way to violate or conflict with this Agreement or the rights
granted to the Holders of Registrable Securities hereunder.
(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 a majority of the then outstanding Underlying Common Stock constituting
Registrable Securities (with Holders of Notes deemed to be the Holders, for
purposes of this Section, of the number of outstanding shares of Underlying
Common Stock into which such Notes are or would be convertible as of the date on
which such consent is requested). Notwithstanding the foregoing, a waiver or
consent to depart from the provisions hereof with respect to a matter that
relates exclusively to the rights of Holders of Registrable Securities whose
securities are being sold pursuant to a Registration Statement and that does not
directly or indirectly affect the rights of other Holders of Registrable
Securities may be given by Holders of at least a majority of the Registrable
Securities being sold by such Holders pursuant to such Registration Statement;
provided that the provisions of this sentence may not be amended, modified, or
supplemented except in accordance with the provisions of the immediately
preceding sentence. Notwithstanding the foregoing, this Agreement may be amended
by written agreement signed by the Company and the Initial Purchaser, without
the consent of the Holders of Registrable Securities, to cure any ambiguity or
to correct or supplement any provision contained herein that may be defective or
inconsistent with any other provision contained herein or to make such other
provisions in regard to matters or questions arising under this Agreement that
shall not adversely affect the interests of the Holders of Registrable
Securities. Each Holder of Registrable Securities outstanding at the time of any
such amendment, modification, supplement, waiver or consent or thereafter shall
be bound by any such amendment, modification, supplement, waiver or consent
effected pursuant to this Section 8(b), whether or not any notice, writing or
marking indicating such amendment, modification, supplement, waiver or consent
appears on the Registrable Securities or is delivered to such Holder.
(c) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand delivery, by telecopier
(other than for notices and other communications to the Company), by courier
guaranteeing overnight delivery or by first-class mail, return receipt
requested, and shall be deemed given (i) when made, if made by hand delivery,
(ii) upon confirmation, if made by telecopier, (iii) one (1) Business Day after
being deposited with such courier, if made by overnight courier, or (iv) on the
date indicated on the notice of receipt, if made by first-class mail, to the
parties as follows:
if to a Holder of Registrable Securities that is not a Notice
Holder, at the address for such Holder then appearing in the Registrar (as
defined in the Indenture);
if to a Notice Holder, at the most current address given by
such Holder to the Company in a Notice and Questionnaire or any amendment
thereto;
if to the Company, to:
Openwave Systems Inc.
0000 Xxxxxxx Xxxxxxxxx
Xxxxxxx Xxxx, Xxxxxxxxxx 00000
Telephone No. (000) 000-0000
Attention: General Counsel
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx, Xxxxxxxxxx 00000
Telephone No. (000) 000-0000
Facsimile No. (000) 000-0000
Attention: Xxxxxxx X. Xxxxx
and
if to the Initial Purchaser, to:
Xxxxxxx Xxxxx & Co.,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Syndicate Department
Telecopier: 000-000-0000
with a copy to:
Shearman & Sterling LLP
0000 Xxxxx Xxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Telephone No. (000) 000-0000
Facsimile No. (000) 000-0000
Attention: Xxxxx Xxxxxxx
or to such other address as such person may have furnished to the other persons
identified in this Section 8(c) in writing in accordance herewith.
(d) Approval of Holders. Whenever the consent or approval of
Holders of a specified percentage of Registrable Securities is required
hereunder, Registrable Securities held by the Company or its Affiliates (other
than the Initial Purchaser or subsequent Holders of Registrable Securities if
such subsequent Holders are deemed to be such affiliates solely by reason of
their holdings of such Registrable Securities) shall not be counted in
determining whether such consent or approval was given by the Holders of such
required percentage.
(e) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the parties
hereto and, without requiring any express assignment, shall inure to the benefit
of and be binding upon each Holder of any Registrable Securities; provided that
nothing herein shall be deemed to permit any assignment, transfer of other
disposition of Registrable Securities in violation of the terms of the Purchase
Agreement, the Indenture or applicable law. 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 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.
(f) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be original and all of which taken
together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(i) Severability. If any term, provision, covenant or
restriction of this Agreement is held to be invalid, illegal, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect and shall in
no way be affected, impaired or invalidated thereby, and the parties hereto
shall use their best efforts to find and employ an alternative means to achieve
the same or substantially the same result as that contemplated by such term,
provision, covenant or restriction, it being intended that all of the rights and
privileges of the parties hereto shall be enforceable to the fullest extent
permitted by law.
(j) Entire Agreement. This Agreement is intended by the
parties hereto as a final expression of their agreement and is intended to be a
complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein and the
registration rights granted by the Company with respect to the Registrable
Securities. Except as provided in the Purchase Agreement, there are no
restrictions, promises, warranties or undertakings, other than those set forth
or referred to herein, with respect to the registration rights granted by the
Company with respect to the Registrable Securities. This Agreement supersedes
all prior agreements and undertakings among the parties hereto with respect to
such registration rights.
(k) Termination. This Agreement and the obligations of the
parties hereunder shall terminate upon the expiration of the Effectiveness
Period, except for (i) any liabilities or obligations under Section 4, 5, 6 or 8
hereof and the obligations to make payments of and provide for liquidated
damages under Section 2(e) hereof to the extent such damages accrue prior to the
end of the Effectiveness Period, each of which shall remain in effect in
accordance with its terms.
IN WITNESS WHEREOF, the parties have executed this
Registration Rights Agreement as of the date first written above.
Very truly yours,
OPENWAVE SYSTEMS INC.
By: _____________________________
Name:
Title:
Agreed and accepted as of the date first
above written:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: _____________________________
Name:
Title:
