Linear Technology Corporation Registration Rights Agreement
Exhibit
10.56
Linear
Technology Corporation
3.125%
Convertible Senior Notes Due May 1, 2027
April
24,
2007
Credit
Suisse Securities (USA) LLC
Eleven
Xxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000-0000
Ladies
and Gentlemen:
Linear
Technology Corporation, a Delaware corporation (the “Company”), proposes to
issue and sell to you (the “Initial Purchaser”), its 3.125% Convertible Senior
Notes Due May 1, 2027 (the “Notes”), upon the terms set forth in the Purchase
Agreement by and between the Company and the Initial Purchaser, dated April
18,
2007 (the “Purchase Agreement”), relating to the initial placement (the “Initial
Placement”) of the Notes. In certain circumstances, the Notes will be
convertible for shares of common stock, par value $0.001 per share (the “Common
Stock”), of the Company in accordance with the terms of the Notes and the
Indenture (as defined below). To induce the Initial Purchaser to purchase the
Notes pursuant to the Purchase Agreement, the holders of the Notes will have
the
benefit of this registration rights agreement by and between the Company and
the
Initial Purchaser whereby the Company agrees with you for your benefit and
the
benefit of the holders from time to time of the Notes (including the Initial
Purchaser) (each a “Holder” and, collectively, the “Holders”), as
follows:
1. Definitions.
Capitalized
terms used herein without definition shall have their respective meanings set
forth in the Purchase Agreement. As used in this Agreement, the following
capitalized defined terms shall have the following meanings:
“Act”
shall mean the Securities Act of 1933, as amended, and the rules and regulations
of the Commission promulgated thereunder.
“Additional
Interest” shall have the meaning set forth in Section 7 hereof.
“Affiliate”
shall have the meaning specified in Rule 405 under the Act and the terms
“controlling” and “controlled” shall have meanings correlative
thereto.
“Automatic
Shelf Registration Statement” shall mean a Registration Statement filed by a
Well-Known Seasoned Issuer which shall become effective upon filing thereof
pursuant to General Instruction I.D for Form S-3.
“Broker-Dealer”
shall mean any broker or dealer registered as such under the Exchange
Act.
“Business
Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a
day on which banking institutions or trust companies are authorized or obligated
by law to close in New York City.
“Closing
Date” shall mean the first date of the original issuance of the
Notes.
“Common
Stock” shall have the meaning set forth in the preamble.
“Commission”
shall mean the Securities and Exchange Commission.
“Conversion
Price” shall have the meaning specified in the Indenture.
“Deferral
Period” shall have the meaning indicated in Section 3(i)
hereof.
“Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the Commission promulgated thereunder.
“Final
Memorandum” shall mean the offering circular, dated April 18, 2007, relating to
the Notes, including any and all annexes thereto and any information
incorporated by reference therein as of such date.
“Holder”
shall have the meaning set forth in the preamble hereto.
“Indenture”
shall mean the Indenture relating to the Notes, dated as of April 24, 2007,
by
and between the Company and U.S. Bank National Association as trustee, as the
same may be amended, modified or supplemented from time to time in accordance
with the terms thereof.
“Initial
Placement” shall have the meaning set forth in the preamble hereto.
“Initial
Purchaser” shall have the meaning set forth in the preamble hereto.
“Losses”
shall have the meaning set forth in Section 5(d) hereof.
“Majority
Holders” shall mean, on any date, Holders of a majority of the Common Stock
registered under the Shelf Registration Statement constituting Registrable
Securities; provided
that for
purposes of any determination of Majority Holders, the Holders of the Notes
will
be counted on an as converted basis.
“Managing
Underwriters” shall mean the investment banker or investment bankers and manager
or managers that administer an underwritten offering, if any, conducted pursuant
to Section 6 hereof.
“NASD
Rules” shall mean the Conduct Rules and the By-Laws of the National Association
of Securities Dealers, Inc.
“Notes”
shall have the meaning set forth in the preamble.
“Notice
and Questionnaire” shall mean a written notice delivered to the Company
substantially in the form attached as Annex A to the Final
Memorandum.
“Notice
Holder” shall mean, on any date, any Holder of Registrable Securities that has
delivered a properly completed Notice and Questionnaire to the Company, and
any
information to be furnished pursuant to Section 3(k), on or prior to such
date.
“Prospectus”
shall mean a prospectus included in the Shelf Registration Statement (including,
without limitation, a prospectus that discloses information previously omitted
from a prospectus filed as part of an effective registration statement in
reliance upon Rule 430A or Rule 430B under the Act), as amended or supplemented
by any prospectus supplement, with respect to the terms of the offering of
any
portion of the Notes or the Common Stock covered by the Shelf Registration
Statement, and all amendments and supplements thereto, including any and all
exhibits thereto and any information incorporated by reference
therein.
“Purchase
Agreement” shall have the meaning set forth in the preamble hereto.
“Registrable
Securities” shall mean the Notes and the shares of Common Stock issuable upon
conversion of the Notes initially sold to the Initial Purchaser pursuant to
the
Purchase Agreement other than those that have (i) been registered under the
Shelf Registration Statement and disposed of in accordance therewith, (ii)
become eligible to be sold without restriction as contemplated by Rule 144(k)
under the Act or any successor rule or regulation thereto that may be adopted
by
the Commission, (iii) ceased to be outstanding, whether as a result of
redemption, repurchase, cancellation, conversion or otherwise, or (iv) been
sold to the public pursuant to Rule 144 under the Act.
“Shelf
Registration Period” shall have the meaning set forth in Section 2(c)
hereof.
“Shelf
Registration Statement” shall mean a “shelf” registration statement of the
Company pursuant to the provisions of Section 2 hereof which covers some or
all of the Notes and the Common Stock issuable upon conversion of the Notes
on
an appropriate form under Rule 415 under the Act, or any similar rule that
may be adopted by the Commission, amendments and supplements to such
registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
“underwriter”
shall mean any underwriter of Notes or Common Stock in connection with an
offering thereof under the Shelf Registration Statement.
“Well-Known
Seasoned Issuer” or “WKSI” shall have the meaning set forth in Rule 405 under
the Act.
2. Shelf
Registration.
(a)
The
Company shall no later than 120 days after the Closing Date file with the
Commission a Shelf Registration Statement (which shall be, if the Company is
then a WKSI, an Automatic Shelf Registration Statement) providing for the
registration of, and the sale on a continuous or delayed basis by the Holders
of, all of the Registrable Securities, from time to time in accordance with
the
methods of distribution elected by such Holders, pursuant to Rule 415 under
the
Act or any similar rule that may be adopted by the Commission.
(b) If
the
Shelf Registration Statement is not an Automatic Shelf Registration Statement,
the Company shall use its commercially reasonable efforts to cause the Shelf
Registration Statement to become or be declared effective under the Act no
later
than 180 days after the Closing Date.
(c) The
Company shall use its commercially reasonable efforts to keep the Shelf
Registration Statement continuously effective, supplemented and amended as
required by the Act, in order to permit the Prospectus forming part thereof
to
be usable by Holders for a period (the “Shelf Registration Period”) from the
date the Shelf Registration Statement is declared effective by the Commission
(or becomes effective in the case of an Automatic Shelf Registration Statement)
until the earliest of (i) two years from the latest date of original
issuance of the Notes; (ii) the date when all Registrable Securities shall
have
been registered under the Securities Act and disposed of; (iii) the date on
which all Registrable Securities held by non-affiliates are eligible to be
sold
to the public pursuant to Rule 144(k) under the Securities Act;
and
(iv) the date upon which there are no Registrable Securities outstanding.
None of the Company or any of its securityholders (other than the Holders of
Registrable Securities) shall have the right to include any securities of the
Company in any Shelf Registration Statement other than Registrable
Securities.
(d) The
Company shall cause the Shelf Registration Statement and the related Prospectus
and any amendment or supplement thereto, as of the effective date of the Shelf
Registration Statement or such amendment or supplement, (i) to comply in
all material respects with the applicable requirements of the Act; and
(ii) not to contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order to
make the statements therein (in the case of the Prospectus, in the light of
the
circumstances under which they were made) not misleading.
(e) The
Company shall issue a press release through a reputable national newswire
service announcing the anticipated effective date of the Shelf Registration
Statement at least 15 Business Days prior to the anticipated effective date
thereof. In addition, the Company will give notice of its intention to file
the
Shelf Registration Statement to the Holders in the same manner as the Company
would give notice to the holders of the Notes under the Indenture. Each Holder
of Registrable Securities agrees to deliver a Notice and Questionnaire and
such
other information as the Company may reasonably request in writing, if any,
to
the Company at least ten Business Days prior to the anticipated effective date
of the Shelf Registration Statement as announced in the press release. If a
Holder does not timely complete and deliver a Notice and Questionnaire or
provide the other information the Company may request, that Holder will not
be
named as a selling securityholder in the Prospectus and will not be permitted
to
sell its securities under the Shelf Registration Statement. From and after
the
effective date of the Shelf Registration Statement, the Company shall use
commercially reasonable efforts, as promptly as is practicable after the date
a
Notice and Questionnaire is delivered, and in any event within five Business
Days after such date, (i) if required by applicable law, to file with the
Commission a post-effective amendment to the Shelf Registration Statement;
and,
if the Company shall file a post-effective amendment to the Shelf Registration
Statement, use commercially reasonable efforts to cause such post-effective
amendment to be declared effective under the Act as promptly as is practicable;
or to prepare and, if permitted or required by applicable law, to file a
supplement to the related Prospectus or an amendment or supplement to any
document incorporated therein by reference or file any other required document
so that the Holder delivering such Notice and Questionnaire is named as a
selling securityholder in the Shelf Registration Statement and the related
Prospectus, and so that such Holder is permitted to deliver such Prospectus
to
purchasers of the Registrable Securities in accordance with applicable law;
provided,
that
the Company shall not be required to file more than one post-effective amendment
in any calendar quarter or to file a supplement or post-effective amendment
during any Deferral Period; (ii) provide such Holder, upon request, copies
of any documents filed pursuant to Section 2(e)(i) hereof; and
(iii) notify such Holder as promptly as practicable after the effectiveness
under the Act of any post-effective amendment filed pursuant to
Section 2(e)(i) hereof; 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(i) hereof.
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 the Shelf Registration Statement or related Prospectus;
provided,
however,
that
any Holder that becomes a Notice Holder pursuant to the provisions of this
Section 2(e) (whether or not such Holder was a Notice Holder at the
effective date of the Shelf Registration Statement) shall be named as a selling
securityholder in the Shelf Registration Statement or related Prospectus in
accordance with the requirements of this Section 2(e). Each Holder named as
a selling securityholder in the Prospectus agrees to promptly furnish to the
Company all information required to be disclosed in order to make information
previously furnished to the Company by the Holder not materially misleading
and
any other information regarding such Holder and the distribution of such
Holder’s Registrable Securities as the Company may from time to time reasonably
request in writing.
3. Registration
Procedures.
The
following provisions shall apply in connection with the Shelf Registration
Statement.
(a) The
Company shall:
(i) furnish
to the Initial Purchaser and to counsel for the Notice Holders (if appointed
in
accordance with Section 4), prior to the filing thereof with the Commission,
a
copy of the Shelf Registration Statement and each amendment thereto and each
amendment or supplement, if any, to the Prospectus included therein (including
all documents incorporated by reference therein after the initial filing) and
shall reflect in each such document, when so filed with the Commission, such
comments as the Initial Purchaser reasonably proposes within three Business
Days
of the delivery of such document to the Initial Purchaser; and
(ii) include
information regarding the Notice Holders and the methods of distribution they
have elected for their Registrable Securities provided to the Company in Notices
and Questionnaires in a timely manner, as provided above, as necessary to permit
such distribution by the methods specified therein.
(b) The
Company shall ensure that:
(i) the
Shelf
Registration Statement and any amendment thereto and any Prospectus forming
part
thereof and any amendment or supplement thereto complies in all material
respects with the Act; and
(ii) the
Shelf
Registration Statement and any amendment thereto does not, when it becomes
effective, contain an untrue statement of a material fact or omit to state
a
material fact required to be stated therein or necessary to make the statements
therein not misleading.
(c) The
Company shall advise the Initial Purchaser (solely with respect to clause (i)
below), the Notice Holders and any underwriter that has provided in writing
to
the Company a telephone or facsimile number and address for notices, and confirm
such advice in writing, if requested (which notice pursuant to clauses
(ii)-(v) below shall be accompanied by an instruction to suspend the use of
the Prospectus until the Company shall have remedied the basis for such
suspension):
(i) when
the
Shelf Registration Statement and any amendment thereto (other than supplements
that do nothing more than name Holders and provide information with respect
thereto or that are required to be filed by the Company under the Exchange
Act)
has been filed with the Commission and when the Shelf Registration Statement
or
any post-effective amendment thereto has become effective;
(ii) of
any
request by the Commission for any amendment or supplement to the Shelf
Registration Statement or the Prospectus or for additional information with
respect thereto;
(iii) of
the
issuance by the Commission of any stop order suspending the effectiveness of
the
Shelf Registration Statement or the institution or threatening of any proceeding
for that purpose, of the issuance by the Commission of a notification of
objection to the use of the form on which the Registration Statement has been
filed, and of the happening of any event that causes the Company to become
an
“ineligible issuer” as defined in Commission Rule 405;
(iv) of
the
receipt by the Company of any notification with respect to the suspension of
the
qualification of the Common Stock included therein for sale in any jurisdiction
or the institution or any written threat of any proceeding for such purpose;
and
(v) of
the
happening of any event that requires any change in the Shelf Registration
Statement or the Prospectus so that, as of such date, they (A) do not
contain any untrue statement of a material fact and (B) do not omit to
state a material fact required to be stated therein or necessary to make the
statements therein (in the case of the Prospectus, in the light of the
circumstances under which they were made) not misleading.
Each
Holder agrees that, upon receipt of any notice from the Company of the happening
of any event or the discovery of any facts, each of the kind described in
clauses (ii) through (v) hereof, such Holder will forthwith discontinue
disposition of Registrable Securities pursuant to the Prospectus included in
the
Shelf Registration Statement until such Holder’s receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 3(h) hereof or
written notice from the Company that the Shelf Registration Statement is again
effective and no amendment or supplement is needed, and, if so directed by
the
Company, such Holder will deliver to the Company (at the Company’s expense) all
copies in such Holder’s possession, other than permanent file copies then in
such Holder’s possession, of the Prospectus covering such Registrable Securities
current at the time of receipt of such notice.
(d) The
Company shall use its commercially reasonable efforts to prevent the issuance
of
any order suspending the effectiveness of the Shelf Registration Statement
or
the qualification of the securities therein for sale in any jurisdiction and,
if
issued, to obtain as soon as practicable the withdrawal thereof. The Company
shall undertake additional actions as required to permit unrestricted resales
of
the Common Stock in accordance with the terms and conditions of this
Agreement.
(e) Upon
request, the Company shall furnish to each Notice Holder, without charge, at
least one copy of the Shelf Registration Statement and any post-effective
amendment thereto, including all material incorporated therein by reference,
and, if a Notice Holder so requests in writing, all exhibits thereto (including
exhibits incorporated by reference therein).
(f) During
the Shelf Registration Period, the Company shall promptly deliver to each Notice
Holder and any sales or placement agents or underwriters acting on their behalf,
without charge, as many copies of the Prospectus (including the preliminary
Prospectus, if any) included in the Shelf Registration Statement and any
amendment or supplement thereto as any such person may reasonably request.
The
Company consents to the use of the Prospectus or any amendment or supplement
thereto by each of the foregoing in connection with the offering and sale of
the
Registrable Securities in the manner contemplated by the
Prospectus.
(g) Prior
to
any offering of Common Stock pursuant to the Shelf Registration Statement,
the
Company shall use commercially reasonable efforts to arrange for the
qualification of the Registrable Securities for sale under the laws of such
jurisdictions as any Notice Holder shall reasonably request in writing and
shall
use reasonable best efforts to maintain such qualification in effect so long
as
required; provided
that in
no event shall the Company be obligated to qualify to do business or as a dealer
in any jurisdiction where it is not then so qualified or to take any action
that
would subject it to taxation or service of process in any jurisdiction where
it
is not then so subject.
(h) Upon
the
occurrence of any event contemplated by subsections (c)(ii) through
(v) above, the Company shall as promptly as practicable (or within the time
period provided for by Section 3(i) hereof, if applicable) prepare a
post-effective amendment to the Shelf Registration Statement or an amendment
or
supplement to the related Prospectus or file any other required document so
that, as thereafter delivered to the Initial Purchaser of the Registrable
Securities included therein, the Prospectus will not include an untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(i) Upon
the
occurrence or existence of any pending corporate development, public filings
with the Commission or any other material event that, in the reasonable judgment
of the Company, makes it appropriate to suspend the availability of the Shelf
Registration Statement and the related Prospectus, the Company shall give notice
(without notice of the nature or details of such events) to the Notice Holders
that the availability of the Shelf Registration Statement is suspended and,
upon
actual receipt of any such notice, each Notice Holder agrees not to sell any
Registrable Securities pursuant to the Shelf Registration Statement until such
Notice Holder’s receipt of copies of the supplemented or amended Prospectus
provided for in Section 3(h) hereof, 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 period during which the availability of
the
Shelf Registration Statement and any Prospectus is suspended (the “Deferral
Period”) shall not exceed 90 days in any 12-month period. Each Holder shall keep
confidential any communications received by it from the Company regarding the
suspension of the use of the Prospectus, except as required by applicable
law.
(j) The
Company shall comply with all applicable rules and regulations of the Commission
and shall make generally available to its securityholders an earnings statement
satisfying the provisions of Section 11(a) and Rule 158 of the Act (in
either case, or such longer period as permitted by the Commission pursuant
to
Rule 12b-25 promulgated under the Exchange Act) no later than 45 days after
the
end of a 12-month period (or 90 days, if such period is a fiscal year) beginning
with the first month of the Company’s first fiscal quarter commencing after the
effective date of the Shelf Registration Statement.
(k) In
addition to the Notice and Questionnaire, the Company may require each Holder
of
Registrable Securities to be sold pursuant to the Shelf Registration Statement
to furnish to the Company such information regarding the Holder and the
distribution of such Registrable Securities as the Company may from time to
time
reasonably require for inclusion in the Shelf Registration Statement. The
Company may exclude from the Shelf Registration Statement the Registrable
Securities of any Holder that fails to furnish such information within 15 days
after receiving such request.
(l) In
connection with an underwritten offering of the Registrable Securities, and
subject to Section 6 hereof, the Company shall enter into customary
agreements (including, if requested, an underwriting agreement in customary
form) and take all other customary actions in order to expedite or facilitate
the registration or the underwritten disposition of Registrable Securities,
and
in connection therewith, if an underwriting agreement is entered into, cause
the
same to contain customary indemnification provisions and
procedures.
(m) Subject
to Section 6 hereof, the Company shall:
(i) make
reasonably available for inspection during normal business hours and upon prior
notice by a representative of the Notice Holders of Registrable Securities
to be
registered thereunder, any underwriter participating in any disposition pursuant
to the Shelf Registration Statement, and any attorney, accountant or other
agent
retained by the Holders or any such underwriter all relevant financial and
other
records and pertinent corporate documents of the Company and its subsidiaries;
provided
that
such persons shall, at the Company’s request, first agree in writing with the
Company that any information that is 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 purpose of
exercising rights under this Agreement; and provided,
further, that the Company shall not be required to disclose any information
subject to the attorney-client privilege or attorney work product privilege
if
and to the extent such disclosure would constitute a waiver of such
privilege;
(ii) use
its
commercially reasonable efforts to cause the appropriate officers, directors,
employees, accountants and auditors of the Company to make available for
inspection during normal business hours all relevant information reasonably
requested by such Holders or any such underwriter, attorney, accountant or
agent
in connection with the Shelf Registration Statement as is customary for similar
due diligence examinations; provided,
however,
that
the foregoing inspection and information gathering shall be coordinated on
behalf of the Notice Holders or the Initial Purchaser by one counsel designated
by and on behalf of such other parties as described in Section 4 hereof;
provided,
further,
that
such persons shall, at the Company’s request, first agree in writing with the
Company that any information that is 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 purpose of
exercising rights under this Agreement; and provided,
further,
that
the Company shall not be required to disclose any information subject to the
attorney-client privilege or attorney work product privilege if and to the
extent such disclosure would constitute a waiver of such privilege;
(iii) make
such
representations and warranties to the Holders of Registrable Securities
registered thereunder and the underwriters, if any, in form, substance and
scope
as are customarily made by issuers to underwriters in primary underwritten
offerings and covering matters including, but not limited to, those set forth
in
the Purchase Agreement;
(iv) if
requested by any Notice Holder in connection with an underwritten offering
of
the Registrable Securities, obtain opinions of counsel to the Company in
customary form addressed to the Managing Underwriters, if any, and each selling
Holder that is an underwriter;
(v) obtain
“comfort” letters and updates thereof from the independent certified public
accountants of the Company (and, if necessary, any other independent certified
public accountants of any subsidiary of the Company or of any business acquired
by the Company for which financial statements and financial data are, or are
required to be, included in the Shelf Registration Statement), addressed to
each
selling Holder of Registrable Securities registered thereunder that is an
underwriter and the Managing Underwriters, if any, in customary form and
covering matters of the type customarily covered in “comfort” letters to
underwriters in connection with similar underwritten offerings; and
(vi) deliver
such documents and certificates as may be reasonably requested by the Majority
Holders or the Managing Underwriters, if any, including those to evidence
compliance with Section 3(j) hereof and with any customary conditions
(including without limitation lock-up agreements with directors and officers)
contained in the underwriting agreement or similar agreement entered into by
the
Company in connection with such underwritten offering.
The
actions set forth in clauses (iii), (iv), (v) and (vi) of this
paragraph (m) shall be performed in connection with any underwriting or
similar agreement as and to the extent required thereunder.
(n) In
the
event that any Broker-Dealer shall underwrite any Registrable Securities or
participate as a member of an underwriting syndicate or selling group or “assist
in the distribution” (within the meaning of the NASD Rules) thereof, whether as
a Holder of such Registrable Securities or as an underwriter, a placement or
sales agent or a broker or dealer in respect thereof, or otherwise, the Company
shall use its reasonable best efforts to assist such Broker-Dealer in complying
with the NASD Rules (subject to the same limitations and qualifications
regarding confidentiality, attorney-client privilege and attorney work product
privilege described in Section 3(m) above).
(o) The
Company shall
use its
commercially reasonable efforts to take all other steps necessary to effect
the
registration of the Registrable Securities covered by the Shelf Registration
Statement.
4. Registration
Expenses.
The
Company shall bear all expenses incurred in connection with the performance
of
its obligations under Sections 2 and 3 hereof and shall reimburse the
Holders for the reasonable fees and disbursements of one firm or counsel (which,
if appointed, shall be a nationally recognized law firm experienced in
securities matters designated by the Majority Holders) to act as counsel for
the
Holders in connection therewith. Notwithstanding the foregoing, each Holder
shall pay all underwriting discounts and commissions, broker fees and
commissions, and transfer taxes, if any, relating to the sale or disposition
of
such Holder’s Securities pursuant to the Shelf Registration
Statement.
5. Indemnification
and Contribution.
(a)
The
Company agrees to indemnify and hold harmless each Holder of Registrable
Securities covered by the Shelf Registration Statement, the Initial Purchaser,
the directors, officers, employees, Affiliates and agents of each such Holder
or
Initial Purchaser and each person who controls any such Holder or Initial
Purchaser within the meaning of either the Act or the Exchange Act against
any
and all losses, claims, damages or liabilities, joint or several, to which
they
or any of them may become subject under the Act, the Exchange Act or other
federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Shelf Registration Statement
as
originally filed or in any amendment thereof, or in any preliminary Prospectus
or the Prospectus, or in any amendment thereof or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein
a
material fact required to be stated therein or necessary to make the statements
therein (in the case of any preliminary Prospectus or the Prospectus, in the
light of the circumstances under which they were made) not misleading, and
agrees to reimburse each such indemnified party, as incurred, for any legal
or
other expenses reasonably incurred by it in connection with investigating or
defending any such loss, claim, damage, liability or action; provided,
however,
that
the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished
to
the Company by or on behalf of the party claiming indemnification specifically
for inclusion therein. This indemnity agreement shall be in addition to any
liability that the Company may otherwise have to the indemnified
party.
The
Company also agrees to indemnify as provided in this Section 5(a) or
contribute as provided in Section 5(d) hereof to Losses of each
underwriter, if any, of Registrable Securities registered under the Shelf
Registration Statement, its directors, officers, employees, Affiliates or agents
and each person who controls such underwriter on substantially the same basis
as
that of the indemnification of the Initial Purchaser and the selling Holders
provided in this paragraph (a) and shall, if requested by any Holder, enter
into an underwriting agreement reflecting such agreement, as provided in
Section 3(l) hereof.
(b) Each
Holder of securities covered by the Shelf Registration Statement (including
the
Initial Purchaser that is a Holder, in such capacity) severally and not jointly
agrees to indemnify and hold harmless the Company , each of its directors,
each
of its officers, employees, Affiliates and agents of the Company and each person
who controls the Company within the meaning of either the Act or the Exchange
Act, to the same extent as the foregoing indemnity from the Company to each
such
Holder, but only with reference to written information relating to such Holder
furnished to the Company by or on behalf of such Holder specifically for
inclusion in the documents referred to in the foregoing indemnity. This
indemnity agreement shall be acknowledged by each Notice Holder that is not
an
Initial Purchaser in such Notice Holder’s Notice and Questionnaire and shall be
in addition to any liability that any such Notice Holder may otherwise have
to
the Company.
(c) Promptly
after receipt by an indemnified party under this Section 5 or notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this Section 5,
notify the indemnifying party in writing of the commencement thereof; but the
failure so to notify the indemnifying party (i) will not relieve the
indemnifying party from liability under paragraph (a) or (b) above
unless and to the extent it did not otherwise learn of such action and such
failure results in the forfeiture by the indemnifying party of any substantial
rights and defenses; and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than
the
indemnification obligation provided in paragraph (a) or (b) above. The
indemnifying party shall be entitled to appoint counsel (including local
counsel) of the indemnifying party’s choice at the indemnifying party’s expense
to represent the indemnified party in any action for which indemnification
is
sought (in which case the indemnifying party shall not thereafter be responsible
for the fees and expenses of any separate counsel, other than local counsel
if
not appointed by the indemnifying party, retained by the indemnified party
or
parties except as set forth below); provided,
however,
that
such counsel shall be reasonably satisfactory to the indemnified party.
Notwithstanding the indemnifying party’s election to appoint counsel (including
local counsel) to represent the indemnified party in an action, the indemnified
party shall have the right to employ separate counsel (including local counsel),
and the indemnifying party shall bear the reasonable fees, costs and expenses
of
such separate counsel if (i) the use of counsel chosen by the indemnifying
party to represent the indemnified party would present such counsel with a
conflict of interest; (ii) the actual or potential defendants in, or
targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties that are different from or additional to those available to the
indemnifying party; (iii) the indemnifying party shall not have employed
counsel satisfactory to the indemnified party to represent the indemnified
party
within a reasonable time after notice of the institution of such action; or
(iv) the indemnifying party shall authorize the indemnified party to employ
separate counsel at the expense of the indemnifying party. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened action in respect
of
which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party unless such settlement
(i)
includes an unconditional release of such indemnified party from all liability
on any claims that are the subject matter of such action, (ii) does not include
a statement as to, or an admission of, fault, culpability or a failure to act
by
or on behalf of an indemnified party, and (iii) does not include any undertaking
or obligation to act or to refrain from acting by the indemnified
party.
(d) In
the
event that the indemnity provided in paragraph (a) or (b) of this
Section 5 is unavailable to or insufficient to hold harmless an indemnified
party for any reason, then each applicable indemnifying party shall have a
joint
and several obligation to contribute to the aggregate losses, claims, damages
and liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending loss, claim, liability, damage or
action) (collectively “Losses”) to which such indemnified party may be subject
in such proportion as is appropriate to reflect the relative benefits received
by such indemnifying party, on the one hand, and such indemnified party, on
the
other hand, from the Shelf Registration Statement which resulted in such Losses.
If the allocation provided by the immediately preceding sentence is unavailable
for any reason, the indemnifying party and the indemnified party shall
contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of such indemnifying party, on
the
one hand, and such indemnified party, on the other hand, in connection with
the
statements or omissions which resulted in such Losses as well as any other
relevant equitable considerations. Relative fault shall be determined by
reference to, among other things, whether any untrue or any alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact relates to information provided by the indemnifying party, on the one
hand,
or by the indemnified party, on the other hand, the intent of the parties and
their relative knowledge, access to information and opportunity to correct
or
prevent such untrue statement or omission. The parties agree that it would
not
be just and equitable if contribution were determined by pro rata allocation
(even if the Holders were treated as one entity for such purpose) or any other
method of allocation which does not take account of the equitable considerations
referred to above. Notwithstanding any other provision of this Section 5(d),
the
Holders shall not be required to contribute any amount in excess of the amount
by which the net proceeds received by such Holders from the sale of the
Registrable Securities pursuant to the Shelf Registration Statement exceeds
the
amount of damages which such Holders have otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. Notwithstanding the provisions of this paragraph (d), no person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of the Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. For purposes of this Section 5, each
person who controls a Holder within the meaning of either the Act or the
Exchange Act and each director, officer, employee and agent of such Holder
shall
have the same rights to contribution as such Holder, and each person who
controls the Company within the meaning of either the Act or the Exchange Act,
each officer of the Company and each director, employee or agent of the Company
shall have the same rights to contribution as the Company , subject in each
case
to the applicable terms and conditions of this paragraph (d).
(e) The
provisions of this Section 5 shall remain in full force and effect,
regardless of any investigation made by or on behalf of any Holder or the
Company or any of the indemnified persons referred to in this Section 5,
and shall survive the sale by a Holder of securities covered by the Shelf
Registration Statement.
6. Underwritten
Registrations.
(a)
In no
event will the method of distribution of Registrable Securities take the form
of
an underwritten offering without the prior written consent of the
Company.
(b) If
any
shares of Registrable Securities covered by the Shelf Registration Statement
are
to be sold in an underwritten offering, the Managing Underwriters shall be
selected by the Company, subject to the prior written consent of the Majority
Holders, which consent shall not be unreasonably withheld.
(c) No
person
may participate in any underwritten offering pursuant to the Shelf Registration
Statement unless such person (i) agrees to sell such person’s Registrable
Securities on the basis reasonably provided in any underwriting arrangements
approved by the persons entitled hereunder to approve such arrangements; and
(ii) completes and executes all questionnaires, powers of attorney,
indemnities, underwriting agreements and other documents reasonably required
under the terms of such underwriting arrangements.
7. Registration
Defaults.
If
any of
the following events shall occur, then the Company shall pay additional interest
(the “Additional Interest”) to the Holders as follows:
(a) if
the
Shelf Registration Statement is not filed with the Commission on or prior to
the
120th
day
following the Closing Date, then commencing on the 121st
day
after the Closing Date, Additional Interest shall accrue on the aggregate
outstanding principal amount of the Notes, at a rate of 0.25% per annum for
the first 90 days from and including such 121st
day and
0.50% per annum thereafter; or
(b) if
the
Shelf Registration Statement is not declared effective by the Commission (or
has
not become effective in the case of an Automatic Shelf Registration Statement)
on or prior to the 180th
day
following the Closing Date, then commencing on the 181st
day
after the Closing Date, Additional Interest shall accrue on the aggregate
outstanding principal amount of the Notes, at a rate of 0.25% per annum for
the first 90 days from and including such 181st
day and
0.50% per annum thereafter; or
(c) if
the
Shelf Registration Statement has been declared or become effective but ceases
to
be effective or usable for the offer and sale of the Registrable Securities
(without being succeeded immediately by an effective replacement shelf
registration statement), or the Shelf Registration Statement or Prospectus
contained therein ceases to be usable in connection with the resales of
Registrable Securities for a period of time which exceeds 120 days in the
aggregate in any consecutive 12-month period because either (i) any event occurs
as a result of which the Prospectus forming part of such Shelf Registration
Statement would include any untrue statement of a material fact or omit to
state
any material fact necessary to make the statements therein in the light of
the
circumstances under which they were made not misleading, (ii) it shall be
necessary to amend such Shelf Registration Statement or supplement the related
Prospectus to comply with the Act or Exchange Act or the respective rules
thereunder, or (iii) the occurrence or existence of any pending corporate
development or other material event with respect to us or a public filing with
the Commission that, in the Company’s reasonable discretion, makes it
appropriate to suspend the availability of a Shelf Registration Statement and
the related prospectus, then Additional Interest shall accrue on the aggregate
outstanding principal amount of the Notes at a rate of 0.25% per annum for
the first 90 days from and including the day following such 91st
day and
0.50% per annum thereafter;
provided,
however,
that
(1) upon the filing of the Shelf Registration Statement (in the case of
paragraph (a) above), (2) upon the effectiveness of the Shelf
Registration Statement (in the case of paragraph (b) above), or
(3) upon such time as the Shelf Registration Statement which had ceased to
remain effective or usable for resales again becomes effective and usable for
resales (in the case of paragraph (c) above), the Additional Interest shall
cease to accrue.
Any
amounts of Additional Interest due pursuant to this Section 7 will be
payable in cash on the next succeeding interest payment date to Holders entitled
to receive such Additional Interest on the relevant record dates for the payment
of interest. If any Note ceases to be outstanding during any period for which
Additional Interest is accruing, the Company will prorate the Additional
Interest payable with respect to such Note. Upon the cure of all Registration
Defaults then continuing, the accrual of Additional Interest will automatically
cease and the interest rate borne by the Notes will revert to the original
interest rate at such time.
If
Additional Interest would be payable because of more than one Registration
Default, but at a rate of 0.25% per annum under one Registration Default
and at a rate of 0.50% per annum under the other, then the Additional
Interest rate shall be the higher rate of 0.50% per annum. Other than the
Company’s obligation to pay Additional Interest in accordance with this
Section 7, the Company will not have any liability for damages with respect
to a Registration Default.
Notwithstanding
any provision in this Agreement, in no event shall Additional Interest accrue
to
holders of Common Stock issued upon conversion of the Notes.
8. No
Inconsistent Agreements.
The
Company has not entered into, and agrees not to enter into, any agreement with
respect to its securities that is inconsistent with the registration rights
granted to the Holders herein.
9. Rule
144A and Rule 144.
So
long
as any Registrable Securities remain outstanding, the Company shall use its
commercially reasonable efforts to file the reports required to be filed by
it
under Rule 144A(d)(4) under the Act and the Exchange Act in a timely manner
and,
if at anytime the Company is not required to file such reports, it will, upon
the written request of any Holder of Registrable Securities, make publicly
available information necessary to permit sales of such Holder’s Registrable
Securities pursuant to Rules 144 and 144A of the Act. The Company covenants
that
it will use its commercially reasonable efforts to take such further action
as
any Holder of Registrable Securities may reasonably request, all to the extent
required from time to time to enable such Holder to sell Registrable Securities
without registration under the Act within the limitation of the exemptions
provided by Rules 144 and 144A (including, without limitation, the requirements
of Rule 144A(d)(4)). Upon the written request of any Holder of Registrable
Securities, the Company shall deliver to such Holder a written statement as
to
whether it has complied with such requirements, unless such statement has been
included in the Company’s most recent report filed with the Commission pursuant
to Section 13 or Section 15(d) of the Exchange Act. Notwithstanding the
foregoing, nothing in this Section 9 shall be deemed to require the Company
to register any of its securities pursuant to the Exchange Act.
10. Listing.
So
long
as any Registrable Securities are outstanding, the Company shall use its
commercially reasonable efforts to maintain the approval of the Registrable
Securities for listing on the Nasdaq Global Market or such other exchange or
trading market as the Common Stock is then listed.
11. Amendments
and Waivers.
The
provisions of this Agreement may not be amended, qualified, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company has obtained the written consent of the
Majority Holders; provided
that,
with respect to any matter that directly or indirectly affects the rights of
the
Initial Purchaser (in its capacity as such) hereunder, the Company shall obtain
the written consent of the Initial Purchaser; provided,
however,
that no
consent is necessary from any Holders in the event that this Agreement is
amended, modified or supplemented for the purpose of curing any ambiguity,
defect or inconsistency that does not adversely affect the rights of Holders;
and provided,
further,
that
the provisions of this Article 11 may not be amended, qualified, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company has obtained the written consent of the
Initial Purchaser and each Holder. Without the consent of the Holder of each
Note, no modification may change the provisions relating to the payment of
Additional Interest.
12. Notices.
All
notices and other communications provided for or permitted hereunder shall
be
made in writing by hand-delivery, first-class mail, telex, telecopier or air
courier guaranteeing overnight delivery:
(a) if
to a
Holder, at the most current address given by such holder to the Company in
accordance with the provisions of the Notice and Questionnaire;
(b) if
to the
Initial Purchaser, initially at the address or addresses set forth in the
Purchase Agreement; and
(c) if
to the
Company,
initially at its address set forth in the Purchase Agreement.
All
such
notices and communications shall be deemed to have been duly given when
received.
The
Initial Purchaser or the Company by notice to the other parties may designate
additional or different addresses for subsequent notices or
communications.
Notwithstanding
the foregoing, notices given to Holders holding Notes in book-entry form may
be
given through the facilities of DTC or any successor depository.
13. Remedies.
Each
Holder, in addition to being entitled to exercise all rights provided to it
herein or in the Purchase Agreement or granted by law, including recovery of
liquidated or other damages, will be entitled to specific performance of its
rights under this Agreement. The Company agrees that monetary damages would
not
be adequate compensation for any loss incurred by reason of a breach of the
provisions of this Agreement and hereby agrees to waive in any action for
specific performance the defense that a remedy at law would be
adequate.
14. Successors.
This
Agreement shall inure to the benefit of and be binding upon the parties hereto,
their respective successors and assigns, including, without the need for an
express assignment or any consent by the Company thereto, subsequent Holders
of
Registrable Securities, and the indemnified persons referred to in
Section 5 hereof. The Company hereby agrees to extend the benefits of this
Agreement to any Holder of Registrable Securities, and any such Holder may
specifically enforce the provisions of this Agreement as if an original party
hereto.
15. Counterparts.
This
Agreement may be signed in one or more counterparts, each of which shall
constitute an original and all of which together shall constitute one and the
same agreement.
16. Headings.
The
section headings used herein are for convenience only and shall not affect
the
construction hereof.
17. Applicable
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York applicable to contracts made and to be performed in the State
of New York. The parties hereto each hereby waive any right to trial by jury
in
any action, proceeding or counterclaim arising out of or relating to this
Agreement.
18. Severability.
In
the
event that any one of more of the provisions contained herein, or the
application thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions hereof shall not be in any way impaired or affected thereby, it
being
intended that all of the rights and privileges of the parties shall be
enforceable to the fullest extent permitted by law.
19. Notes
Held by the Company, etc.
Whenever
the consent or approval of Holders of a specified percentage of principal amount
of Notes is required hereunder, Notes held by the Company or its Affiliates
(other than subsequent Holders of Notes if such subsequent Holders are deemed
to
be Affiliates solely by reason of their holdings of such Notes) shall not be
counted in determining whether such consent or approval was given by the Holders
of such required percentage.
If
the
foregoing is in accordance with your understanding of our agreement, please
sign
and return to us the enclosed duplicate hereof, whereupon this letter and your
acceptance shall represent a binding agreement by and between the Company and
the Initial Purchaser.
Very
truly yours,
Linear
Technology Corporation
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By:
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Name:
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Title:
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The
foregoing Agreement is hereby confirmed and accepted as of the date first above
written.
Credit
Suisse Securities (USA) LLC
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By:
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Name:
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Title:
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