Exhibit 4.3
EXECUTION COPY
RESALE REGISTRATION RIGHTS AGREEMENT
BETWEEN
ARTESYN TECHNOLOGIES, INC.
AND
XXXXXX BROTHERS INC. AND XXXXXXXX INC.
DATED AS OF AUGUST 13 , 2003
TABLE OF CONTENTS
PAGE
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1. Definitions............................................................1
2. Shelf Registration.....................................................4
3. Additional Amounts.....................................................5
4. Registration Procedures................................................6
5. Registration Expenses.................................................12
6. Indemnification and Contribution......................................13
7. Participation in Underwritten Registrations...........................17
8. Miscellaneous.........................................................17
RESALE REGISTRATION RIGHTS AGREEMENT, dated as of August 13, 2003, between
Artesyn Technologies, Inc., a Florida corporation (together with any successor
entity, herein referred to as the "COMPANY"), and Xxxxxx Brothers Inc. and
Xxxxxxxx Inc. (the "INITIAL PURCHASERS").
Pursuant to the Purchase Agreement, dated August 7, 2003, between the
Company and the Initial Purchasers (the "PURCHASE AGREEMENT"), the Initial
Purchasers have agreed to purchase from the Company $75,000,000 (up to
$90,000,000 if the Initial Purchasers exercise in full their option to purchase
additional Notes, as set forth in the Purchase Agreement, in full) aggregate
principal amount of 5.50% Convertible Senior Subordinated Notes due 2010 (the
"NOTES"). The Notes initially will be convertible into fully paid, nonassessable
common stock, par value $0.01 per share, of the Company (the "COMMON STOCK") on
the terms, and subject to the conditions, set forth in the Indenture (as defined
herein). To induce the Initial Purchasers to purchase the Notes, the Company has
agreed to provide the registration rights set forth in this Agreement pursuant
to the Purchase Agreement.
The parties hereby agree as follows:
1. DEFINITIONS. As used in this Agreement, the following capitalized terms
shall have the following meanings:
ADDITIONAL AMOUNTS: As defined in Section 3(a) hereof.
ADDITIONAL AMOUNTS PAYMENT DATE: Each February 15 and August 15,
commencing February 15, 2004.
AFFILIATE: As such term is defined in Rule 405 under the Securities Act.
AGREEMENT: This Resale Registration Rights Agreement, as amended, modified
or otherwise supplemented from time to time in accordance with the terms hereof.
APPLICABLE AMOUNT: In respect of shares of Common Stock issued upon
conversion of Notes, the aggregate principal amount of the Notes converted
therefor.
BLUE SKY APPLICATION: As defined in Section 6(a) hereof.
BUSINESS DAY: A day other than a Saturday or Sunday or any day on which
banking institutions in The City of New York are authorized or obligated by law
or executive order to close.
CLOSING DATE: The date of this Agreement.
COMMISSION: Securities and Exchange Commission.
COMMON STOCK: As defined in the preamble hereto.
EFFECTIVENESS PERIOD: As defined in Section 2(a)(iii) hereof.
EFFECTIVENESS TARGET DATE: As defined in Section 2(a)(ii) hereof.
EXCHANGE ACT: Securities Exchange Act of 1934, as amended, and the rules
and regulations of the Commission thereunder.
HOLDER: A Person who owns, beneficially or otherwise, Transfer Restricted
Securities.
INCLUDED STOCK: As defined in Section 9(c) hereof.
INDEMNIFIED HOLDER: As defined in Section 6(a) hereof.
INDENTURE: The Indenture, dated as of August 13, 2003, between the Company
and The Bank of New York, as trustee (the "TRUSTEE"), pursuant to which the
Notes are to be issued, as such Indenture is amended, modified or supplemented
from time to time in accordance with the terms thereof.
INITIAL PURCHASERS: As defined in the preamble hereto.
INTEREST PAYMENT DATE: Each February 15 and August 15 of each year,
commencing February 15, 2004.
COMPANY: As defined in the preamble hereto.
MAJORITY OF HOLDERS: Holders holding more than 50% of the aggregate
principal amount at maturity of Notes outstanding; PROVIDED that, for purpose of
this definition, a holder of shares of Common Stock which constitute Transfer
Restricted Securities when issued upon conversion of the Notes shall be deemed
to hold an aggregate principal amount at maturity of Notes (in addition to the
principal amount at maturity of Notes held by such holder) equal to $1,000 times
the quotient of (x) the number of such shares of Common Stock received upon
conversion of the Notes and then held by such holder divided by (y) the
prevailing conversion rate, such prevailing conversion rate as determined in
accordance with the Indenture.
NASD: National Association of Securities Dealers, Inc.
NOTES: As defined in the preamble hereto.
PERSON: An individual, partnership, corporation, unincorporated
organization, limited liability company, trust, joint venture or a government or
agency or political subdivision thereof.
PROSPECTUS: The prospectus included in a Shelf Registration Statement, as
amended or supplemented by any prospectus supplement and by all other amendments
thereto, including post-effective amendments, and all material incorporated by
reference into such Prospectus.
PURCHASE AGREEMENT: As defined in the preamble hereto.
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QUESTIONNAIRE: As defined in Section 2(b) hereof.
RECORD HOLDER: With respect to any Additional Amounts Payment Date, each
Person who is a Holder on the record date with respect to the Interest Payment
Date on which such Additional Amounts Payment Date shall occur. In the case of a
Holder of shares of Common Stock issued upon conversion of the Notes, "Record
Holder" shall mean each Person who is a Holder of shares of Common Stock that
constitute Transfer Restricted Securities on the 15th day preceding the relevant
Additional Amounts Payment Date.
REGISTRATION DEFAULT: As defined in Section 3(a) hereof.
SECURITIES ACT: Securities Act of 1933, as amended, and the rules and
resolutions of the Commission thereunder.
SHELF FILING DEADLINE: As defined in Section 2(a)(i) hereof.
SHELF REGISTRATION STATEMENT: As defined in Section 2(a)(i) hereof.
SUSPENSION PERIOD. As defined in Section 4(b)(i) hereof.
TIA: Trust Indenture Act of 1939, as amended, and the rules and
regulations of the Commission thereunder, in each case, as in effect on the date
the Indenture is qualified under the TIA.
TRANSFER RESTRICTED SECURITIES: Each Note and each share of Common Stock
issued upon conversion of Notes until the earliest of:
(i) the date on which such Note or such share of Common Stock issued
upon conversion thereof has been registered under the Securities Act and
disposed of in accordance with the Shelf Registration Statement;
(ii) the date on which such Note or such share of Common Stock issued
upon conversion thereof is transferred in compliance with Rule 144 under
the Securities Act or may be sold or transferred by a Person who is not an
Affiliate of the Company pursuant to Rule 144 under the Securities Act (or
any other similar provision then in force) without any volume restrictions
thereunder; or
(iii) the date on which such Note or such share of Common Stock
issued upon conversion ceases to be outstanding (whether as a result of
redemption, repurchase and cancellation, conversion or otherwise);
provided that any Note and any Common Stock issued upon conversion of such
Note that is redeemed or repurchased by the Company shall not be deemed
Transfer Restricted Securities for purposes of this Agreement upon resale
by the Company.
UNDERWRITTEN REGISTRATION OR UNDERWRITTEN OFFERING: A registration in
which Notes or shares of our Common Stock issued upon conversion of Notes are
sold to an underwriter for reoffering to the public.
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2. SHELF REGISTRATION.
(a) The Company shall:
(i) not later than 90 days after the date hereof (the "SHELF FILING
DEADLINE"), cause to be filed a registration statement pursuant to Rule
415 under the Securities Act (together with any amendments thereto, and
including any documents incorporated by reference therein, the "SHELF
REGISTRATION STATEMENT"), which Shelf Registration Statement shall provide
for resales of all Transfer Restricted Securities held by Holders that
have provided the information required pursuant to the terms of Section
2(b) hereof;
(ii) use its reasonable best efforts to cause the Shelf Registration
Statement to be declared effective by the Commission not later than 180
days after the date hereof (the "EFFECTIVENESS TARGET DATE"); and
(iii) use its reasonable best efforts to keep the Shelf Registration
Statement continuously effective, supplemented and amended as required by
the provisions of Section 4(b) hereof to the extent necessary to ensure
that (A) it is available for resales by the Holders of Transfer Restricted
Securities entitled to the benefit of this Agreement and (B) conforms with
the requirements of this Agreement and the Securities Act for a period
(the "EFFECTIVENESS PERIOD") of:
(1) two years following the last date of original issuance of
Notes; or
(2) such shorter period equal to the earliest of (x) the date
when all of the Holders of Transfer Restricted Securities are able to
sell all Transfer Restricted Securities immediately without
restriction pursuant to Rule 144(k) under the Securities Act or any
successor rule thereto, (y) the date when all Transfer Restricted
Securities cease to be outstanding (whether as a result of
redemption, repurchase and cancellation, conversion or otherwise) or
(z) the date when all Transfer Restricted Securities registered under
the Shelf Registration Statement have been sold.
(b) The Company shall mail to each Holder of Transfer Restricted
Securities the Selling Securityholder Notice and Questionnaire, the form of
which is contained in Annex A to the Offering Memorandum relating to the Notes
(the "Questionnaire"), at least 20 Business Days (but not more than 40 Business
Days) prior to the time the Company intends in good faith to have the Shelf
Registration Statement declared effective by the Commission. To have its
Transfer Restricted Securities included in the Shelf Registration Statement
pursuant to this Agreement, each Holder must complete and deliver the
Questionnaire to the Company within 20 business days of the date of the
Questionnaire. Upon receipt of a written request for additional information from
the Company, each Holder of Transfer Restricted Securities who intends to be
named as a selling securityholder in the Shelf Registration Statement must
complete and deliver to the Company in writing, within 20 Business Days after
such Holder's receipt of such request, such additional information regarding
such Holder and the proposed distribution by such Holder of its Transfer
Restricted Securities, in connection with the Shelf Registration Statement or
Prospectus or Preliminary Prospectus included therein and in any application to
be filed with or under state securities law, as the Company may reasonably
request. In connection with all such requests for information from Holders of
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Transfer Restricted Securities, the Company shall notify such Holders of the
requirements set forth in this paragraph regarding their obligation to provide
the information requested pursuant to this Section. Holders who have not
delivered a Questionnaire prior to the effectiveness of the Shelf Registration
Statement may receive a Questionnaire from the Company upon written request.
Upon receipt of such a completed Questionnaire from a Holder following the
effectiveness of the Shelf Registration Statement, the Company shall, as
promptly as reasonably practicable, file such amendments to the Shelf
Registration Statement or supplements to a related Prospectus as are necessary
to permit such Holder to be named as a Selling Securityholder in the Prospectus
contained in it. Each Holder as to which the Shelf Registration Statement is
being effected agrees to furnish promptly to the Company all information
required to be disclosed in order to make information previously furnished to
the Company by such Holder not materially misleading.
3. ADDITIONAL AMOUNTS.
(a) If:
(i) the Shelf Registration Statement is not filed with the Commission
prior to or on the Shelf Filing Deadline;
(ii) the Shelf Registration Statement has not been declared effective
by the Commission prior to or on the Effectiveness Target Date;
(iii) except as provided in Section 4(b)(i) hereof, the Shelf
Registration Statement is filed and declared effective but, during the
Effectiveness Period, shall thereafter cease to be effective or fail to be
usable for its intended purpose without being succeeded within five
Business Days by a post-effective amendment to the Shelf Registration
Statement, a supplement to the Prospectus or a report filed with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act that cures such failure and, in the case of a post-effective
amendment, is itself immediately declared effective; or
(iv) (A) prior to or on the 60th or 90th day, as the case may be, of
any Suspension Period, such suspension has not been terminated or (B)
Suspension Periods exceed an aggregate of 120 days in any 360 day period,
(each such event referred to in foregoing clauses (i) through (iv), a
"REGISTRATION DEFAULT"), the Company hereby agrees to pay additional
amounts ("ADDITIONAL AMOUNTS") with respect to the Transfer
Restricted Securities from and including the day following the
Registration Default to but excluding the day on which the
Registration Default has been cured, accruing at a rate:
(A) in respect of the Notes, to each holder of Notes, (x) with
respect to the first 90-day period during which a Registration Default
shall have occurred and be continuing, equal to 0.25% per annum of the
principal amount of the Notes, and (y) with respect to the period
commencing on the 91st day following the day the Registration Default
shall have occurred and be continuing, equal to 0.50% per annum of the
principal amount of the Notes; PROVIDED that
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in no event shall Additional Amounts accrue at a rate per year exceeding
0.50% of the Applicable Amount of the Notes; and
(B) in respect of any shares of Common Stock, to each holder of
shares of Common Stock issued upon conversion of Notes, (x) with
respect to the first 90-day period in which a Registration Default
shall have occurred and be continuing, equal to 0.25% per annum of
the Applicable Amount of the converted Notes, and (y) with respect to
the period commencing the 91st day following the day the Registration
Default shall have occurred and be continuing, equal to 0.50% per
annum of the Applicable Amount of the converted Notes; PROVIDED that
in no event shall Additional Amounts accrue at a rate per year
exceeding 0.50% of the Applicable Amount of the converted Notes.
(b) All accrued Additional Amounts shall be paid in arrears to Record
Holders by the Company on each Additional Amounts Payment Date by wire transfer
of immediately available funds or by federal funds check, with the first such
payment due on the first Additional Amounts Payment Date following the date on
which such Additional Amounts begin to accrue. Following the cure of all
Registration Defaults relating to any particular Security or share of Common
Stock or upon such Security or share of Common Stock ceasing to be a Transfer
Restricted Security, the accrual of Additional Amounts with respect to such
Security or share of Common Stock will cease. The Company agrees to deliver all
notices, certificates and other documents contemplated by the Indenture in
connection with the payment of Additional Amounts.
All obligations of the Company to pay Additional Amounts in this Section 3
that are outstanding with respect to any Transfer Restricted Security at the
time such security ceases to be a Transfer Restricted Security shall survive
until such time as all such payment obligations with respect to such Transfer
Restricted Security shall have been satisfied in full.
The Additional Amounts set forth above shall be the exclusive monetary
remedy available to the Holders of Transfer Restricted Securities for such
Registration Default.
4. REGISTRATION PROCEDURES.
(a) In connection with the Shelf Registration Statement, the Company shall
comply with all the provisions of Section 4(b) hereof and shall use its
reasonable best efforts to effect such registration to permit the sale of the
Transfer Restricted Securities being sold in accordance with the intended method
or methods of distribution thereof, and pursuant thereto, shall prepare and file
with the Commission a Shelf Registration Statement relating to the registration
on any appropriate form under the Securities Act.
(b) In connection with the Shelf Registration Statement and any Prospectus
required by this Agreement to permit the sale or resale of Transfer Restricted
Securities, the Company shall:
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(i) Use its reasonable best efforts to keep the Shelf Registration
Statement continuously effective during the Effectiveness Period; upon the
occurrence of any event or the existence of any fact that would cause the
Shelf Registration Statement or the Prospectus contained therein, in
either case including any document incorporated by reference therein, (A)
to contain a material misstatement or omission or (B) not be effective and
usable for resale of Transfer Restricted Securities during the
Effectiveness Period, the Company shall file promptly an appropriate
amendment to the Shelf Registration Statement, a supplement to the
Prospectus or a report filed with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act, in the case of clause (A),
correcting any such misstatement or omission, and, in the case of either
clause (A) or (B), use its reasonable best efforts to cause such amendment
to be declared effective and the Shelf Registration Statement and the
related Prospectus to become usable for their intended purposes as soon as
practicable thereafter. Notwithstanding the foregoing, the Company may
suspend the effectiveness of the Shelf Registration Statement by written
notice to the Holders for a period not to exceed an aggregate of 60 days
in any 90-day period (each such period, a "SUSPENSION PERIOD") if:
(x) an event occurs and is continuing as a result of which the
Shelf Registration Statement would, in the Company's reasonable
judgment, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading; and
(y) the Company reasonably determines that the disclosure of
such event at such time would have a material adverse effect on the
Company and its subsidiaries, taken as a whole;
PROVIDED that in the event the disclosure relates to a previously
undisclosed proposed or pending material business transaction, the
disclosure of which would impede the Company's ability to consummate such
transaction, the Company may extend a Suspension Period from 60 days to 90
days; PROVIDED, FURTHER, that Suspension Periods shall not exceed an
aggregate of 120 days in any 360-day period.
(ii) Prepare and file with the Commission such amendments and
post-effective amendments to the Shelf Registration Statement as may be
necessary to keep the Shelf Registration Statement effective during the
Effectiveness Period; cause the Prospectus to be supplemented by any
required Prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 under the Securities Act, and to comply fully with
the applicable provisions of Rules 424 and 430A under the Securities Act
in a timely manner; and comply with the provisions of the Securities Act
with respect to the disposition of all securities covered by the Shelf
Registration Statement during the applicable period in accordance with the
intended method or methods of distribution by the sellers thereof set
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forth in the Shelf Registration Statement or supplement to the Prospectus.
(iii) Advise the underwriter(s), if any, and selling Holders promptly
(but in any event within two Business Days) and, if requested by such
Persons, to confirm such advice in writing:
(A) when the Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to the
Shelf Registration Statement or any post-effective amendment thereto,
when the same has become effective,
(B) of any request by the Commission for amendments to the Shelf
Registration Statement or amendments or supplements to the Prospectus
or for additional information relating thereto,
(C) of the issuance by the Commission of any stop order
suspending the effectiveness of the Shelf Registration Statement
under the Securities Act or of the suspension by any state securities
commission of the qualification of the Transfer Restricted Securities
for offering or sale in any jurisdiction, or the initiation of any
proceeding for any of the preceding purposes, or
(D) of the existence of any fact or the happening of any event,
during the Effectiveness Period, that makes any statement of a
material fact made in the Shelf Registration Statement, the
Prospectus, any amendment or supplement thereto, or any document
incorporated by reference therein untrue, or that requires the making
of any additions to or changes in the Shelf Registration Statement or
the Prospectus in order to make the statements therein not
misleading.
If at any time the Commission shall issue any stop order suspending the
effectiveness of the Shelf Registration Statement, or any state securities
commission or other regulatory authority shall issue an order suspending
the qualification or exemption from qualification of the Transfer
Restricted Securities under state securities or Blue Sky laws, the Company
shall use its reasonable best efforts to obtain the withdrawal or lifting
of such order at the earliest possible time and will provide to the
Initial Purchasers and each Holder who is named in the Shelf Registration
Statement prompt notice of the withdrawal of any such order.
(iv) Furnish to each of the selling Holders and each of the
underwriter(s), if any, before filing with the Commission, a copy of the
Shelf Registration Statement and copies of any Prospectus included therein
or any amendments or supplements to the Shelf Registration Statement or
Prospectus (other than documents incorporated by reference after the
initial filing of the Shelf Registration Statement), which documents will
be subject to the review of such selling Holders and underwriter(s), if
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any, for a period of at least five Business Days (in the case of the Shelf
Registration Statement and Prospectus) and two Business Days (in the case
of any amendment or supplement thereto), and the Company will not file the
Shelf Registration Statement or Prospectus or any amendment or supplement
to the Shelf Registration Statement or Prospectus (other than documents
incorporated by reference) to which a selling Holder of Transfer
Restricted Securities covered by the Shelf Registration Statement or the
underwriter(s), if any, shall reasonably and timely object in reasonable
detail prior to the filing thereof. A selling Holder or underwriter, if
any, shall be deemed to have objected to such filing "reasonably" if the
Shelf Registration Statement, amendment, Prospectus or supplement, as
applicable, as proposed to be filed, contains a material misstatement or
omission.
(v) Make available at reasonable times for inspection by the selling
Holders, any underwriter participating in any distribution pursuant to the
Shelf Registration Statement, and any attorney or accountant retained by
such selling Holders or any of the underwriter(s), relevant financial and
other records, pertinent corporate documents and properties of the Company
as shall be reasonably necessary to enable them to exercise any applicable
due diligence responsibilities, and cause the Company's officers,
directors, managers and employees to supply all relevant information
reasonably requested by any such selling Holders, underwriter, attorney or
accountant in connection with the Shelf Registration Statement after the
filing thereof and before its effectiveness, PROVIDED, HOWEVER, that any
information designated by the Company as confidential at the time of
delivery of such information shall be kept confidential by the recipient
thereof and, if requested by the Company, to confirm such obligation in
writing.
(vi) If requested in writing by any selling Holders or the
underwriter(s), if any, promptly incorporate in the Shelf Registration
Statement or Prospectus, pursuant to a supplement or post-effective
amendment if necessary, such information as such selling Holders and
underwriter(s), if any, may reasonably request to have included therein,
including, without limitation: (1) information relating to the "Plan of
Distribution" of the Transfer Restricted Securities, (2) information with
respect to the principal amount of Notes or number of shares of Common
Stock being sold to such underwriter(s), (3) the purchase price being paid
therefor and (4) any other terms of the offering of the Transfer
Restricted Securities to be sold in such offering; and make all required
filings of such Prospectus supplement or post-effective amendment as soon
as reasonably practicable after the Company is notified of the matters to
be incorporated in such Prospectus supplement or post-effective amendment.
(vii) Upon request and to the extent such information is not publicly
available, furnish to each selling Holder and each of the underwriter(s),
if any, without charge, at least one copy of the Shelf Registration
Statement, as first filed with the Commission, and of each amendment
thereto (and any documents incorporated by reference therein or exhibits
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thereto (or exhibits incorporated in such exhibits by reference) as such
Person may request).
(viii) If so requested in writing, deliver to each selling Holder and
each of the underwriter(s), if any, without charge, as many copies of the
Prospectus (including each preliminary prospectus) and any amendment or
supplement thereto as such Persons reasonably may request; subject to any
notice by the Company in accordance with this Section 4(b) of the
existence of any fact or event of the kind described in Section
4(b)(iii)(D), the Company hereby consents to the use of the Prospectus and
any amendment or supplement thereto by each of the selling Holders and
each of the underwriter(s), if any, in connection with the offering and
the sale of the Transfer Restricted Securities covered by the Prospectus
or any amendment or supplement thereto.
(ix) The Company shall:
(A) upon request, furnish to each selling Holder and each
underwriter, if any, in such substance and scope as they may reasonably
request and as are customarily made by issuers to underwriters in primary
underwritten offerings for selling security holders, upon the date of
closing of any sale of Transfer Restricted Securities in an Underwritten
Registration:
(1) a certificate, dated the date of such closing, signed
by the Chief Financial Officer of the Company confirming, as of
the date thereof, matters of the type set forth in Section 5(g)
of the Purchase Agreement and such other matters as such parties
may reasonably request;
(2) opinions, each dated the date of such closing, of
counsel to the Company covering such of the matters as are
customarily covered in legal opinions to underwriters in
connection with underwritten offerings of securities; and
(3) customary comfort letters, dated the date of such
closing, from the Company's independent accountants in the
customary form and covering matters of the type customarily
covered in comfort letters to underwriters in connection with
underwritten offerings of securities;
(B) set forth in full in the underwriting agreement, if any,
indemnification provisions and procedures which provide rights no less
protective than those set forth in Section 6 hereof with respect to all
parties to be indemnified; and
(C) deliver such other documents and certificates as may be
reasonably requested by such parties to evidence compliance with clause
(A) above and with any customary conditions contained in the underwriting
agreement or other agreement entered into by the selling Holders pursuant
to this clause (ix).
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(x) Before any public offering of Transfer Restricted Securities,
cooperate with the selling Holders, the underwriter(s), if any, and their
respective counsel in connection with the registration and qualification
of the Transfer Restricted Securities under the securities or Blue Sky
laws of such jurisdictions in the United States as the selling Holders or
underwriter(s), if any, may reasonably request and do any and all other
acts or things necessary or advisable to enable the disposition in such
jurisdictions of the Transfer Restricted Securities covered by the Shelf
Registration Statement; provided, however, the Company shall not be
required to qualify as a foreign corporation, subject itself to taxation
or file a general consent to service of process in any such jurisdiction.
(xi) Cooperate with the selling Holders and the underwriter(s), if
any, to facilitate the timely preparation and delivery of certificates
representing Transfer Restricted Securities to be sold and not bearing any
restrictive legends (unless required by applicable securities laws); and
enable such Transfer Restricted Securities to be in such denominations and
registered in such names as the selling Holders or the underwriter(s), if
any, may request at least three Business Days before any sale of Transfer
Restricted Securities made by such underwriter(s).
(xii) Provide CUSIP numbers for all Transfer Restricted Securities
not later than the effective date of the Shelf Registration Statement and
provide the Trustee under the Indenture with certificates for the Notes
that are in a form eligible for deposit with The Depository Trust Company.
(xiii) 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 that is required to be retained in accordance with the rules
and regulations of the NASD.
(xiv) Otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the Commission and all reporting
requirements under the Exchange Act.
(xv) Cause the Indenture to be qualified under the TIA not later than
the effective date of the Shelf Registration Statement required by this
Agreement, and, in connection therewith, cooperate with the Trustee and
the holders of Notes to effect such changes to the Indenture as may be
required for such 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 thereunder to execute all documents that may be required to
effect such changes and all other forms and documents required to be filed
with the Commission to enable such Indenture to be so qualified in a
timely manner.
(xvi) Cause all shares of Common Stock covered by the Shelf
Registration Statement to be listed or quoted, as the case may be, on each
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securities exchange or automated quotation system on which similar
securities issued by the Company are then listed or quoted.
(xvii) Provide to each Holder upon written request each document
filed with the Commission pursuant to the requirements of Section 13 and
Section 15 of the Exchange Act after the effective date of the Shelf
Registration Statement.
(xviii) If requested by the underwriter(s), make appropriate officers
of the Company reasonably available to the underwriter(s) for meetings
with prospective purchasers of the Transfer Restricted Securities and
prepare and present to potential investors customary "road show" or
marketing materials in a manner consistent with other new issuances of
other securities similar to the Transfer Restricted Securities.
(c) Each Holder agrees by acquisition of a Transfer Restricted Security
that, upon receipt of any notice from the Company of the existence of any fact
of the kind described in Section 4(b)(iii)(D) hereof, such Holder will, and will
use its reasonable best efforts to cause any underwriter(s) in an Underwritten
Offering to, forthwith discontinue disposition of Transfer Restricted Securities
pursuant to the Shelf Registration Statement until:
(i) such Holder has received copies of the supplemented or amended
Prospectus contemplated by Section 4(b)(i) and 4(b)(viii) hereof; or
(ii) such Holder is advised in writing by the Company that the use of
the Prospectus may be resumed, and has received copies of any additional
or supplemental filings that are incorporated by reference in the
Prospectus.
If so directed by the Company, each Holder will deliver to the Company (at the
Company's expense) all copies, other than permanent file copies then in such
Holder's possession, of the Prospectus covering such Transfer Restricted
Securities that was current at the time of receipt of such notice of suspension.
(d) Each Holder must notify the Company not later than three Business Days
prior to any proposed sale by such Holder pursuant to the Shelf Registration
Statement. Such notice shall be effective for five Business Days.
5. REGISTRATION EXPENSES. All expenses incident to the Company's
performance of or compliance with this Agreement shall be borne by the Company
regardless of whether a Shelf Registration Statement becomes effective,
including, without limitation:
(i) all registration and filing fees and expenses (including filings
made by any Initial Purchasers or Holders with the NASD);
(ii) all fees and expenses of compliance with federal securities and
state Blue Sky or securities laws;
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(iii) all expenses of printing (including printing of Prospectuses
and certificates for the Common Stock to be issued upon conversion of the
Notes) and the Company's expenses for messenger and delivery services and
telephone;
(iv) all fees and disbursements of counsel to the Company and,
subject to Section 5(b) below, the Holders of Transfer Restricted
Securities not to exceed $75,000;
(v) all application and filing fees in connection with listing (or
authorizing for quotation) the Common Stock on a national securities
exchange or automated quotation system pursuant to the requirements
hereof; and
(vi) all fees and disbursements of independent certified public
accountants of the Company (including the expenses of any special audit
and comfort letters required by or incident to such performance).
Notwithstanding the foregoing, the Company shall not pay any underwriting
discounts or commissions attributable to the sale of any Transfer Restricted
Securities.
The Company shall bear its internal expenses (including, without
limitation, all salaries and expenses of its officers and employees performing
legal, accounting or other duties), the expenses of any annual audit and the
fees and expenses of any Person, including special experts, retained by the
Company.
(b) In connection with the Shelf Registration Statement required by this
Agreement, including any amendment or supplement thereto, and any other
documents delivered to any Holders, the Company shall reimburse the Initial
Purchasers and the Holders of Transfer Restricted Securities being registered
pursuant to the Shelf Registration Statement, as applicable, for the reasonable
fees and disbursements of not more than one counsel, which shall be chosen by a
Majority of Holders for whose benefit the Shelf Registration Statement is being
prepared.
6. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company shall indemnify and hold harmless each Holder, such
Holder's officers, directors, partners and employees and each person, if any,
who controls such Holder within the meaning of the Securities Act (each, an
"INDEMNIFIED HOLDER"), from and against any loss, claim, damage or liability,
joint or several, or any action in respect thereof (including, but not limited
to, any loss, claim, damage, liability or action relating to resales of the
Transfer Restricted Securities), to which such Indemnified Holder may become
subject, under the Act or otherwise, insofar as any such loss, claim, damage,
liability or action arises out of, or is based upon:
(i) any untrue statement or alleged untrue statement of a material fact
contained in (A) the Shelf Registration Statement or Prospectus or any
amendment or supplement thereto, (B) any blue sky application or other
document or any amendment or supplement thereto prepared or executed by the
Company (or based upon written information furnished by or on behalf of the
Company expressly for use in such blue sky application or other document or
amendment on supplement) filed in any jurisdiction
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specifically for the purpose of qualifying any or all of the Transfer
Restricted Securities under the securities law of any state or other
jurisdiction (such application or document being hereinafter called a "BLUE
SKY APPLICATION"), or (C) in any written materials or information provided to
investors by, or with the approval of, the Company in connection with the
marketing of the offering of the Transfer Restricted Securities ("MARKETING
MATERIALS"), including any roadshow or investor presentations made to
investors by the Company (whether in person or electronically); or
(ii) the omission or alleged omission to state therein any material
fact necessary to make the statements therein not misleading,
and shall reimburse each Indemnified Holder promptly upon demand for any legal
or other expenses reasonably incurred by such Indemnified Holder in connection
with investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action as such expenses are incurred; PROVIDED,
HOWEVER, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage, liability or action arises out of, or is
based upon, any untrue statement or alleged untrue statement or omission or
alleged omission made in the Shelf Registration Statement or Prospectus or
amendment or supplement thereto or in any Blue Sky Application or Marketing
Materials in reliance upon and in conformity with written information furnished
to the Company by or on behalf of such Indemnified Holder specifically for
inclusion therein PROVIDED, FURTHER, that as to any Prospectus or any amendment
or supplement thereto, this indemnity agreement shall not inure to the benefit
of any Indemnified Holder on account of any loss, claim, damage, liability or
action arising from the sale of Transfer Restricted Securities to any person by
that Indemnified Holder if that Indemnified Holder failed to send or give a copy
of the Prospectus or any amendment or supplement thereto, to that person, and
the untrue statement or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact in such Prospectus or any amendment
or supplement thereto was corrected in the Prospectus or any amendment or
supplement thereto, unless such failure resulted from non-compliance by the
Company with Section 4(b)(viii). The foregoing indemnity agreement is in
addition to any liability which the Company may otherwise have to any
Indemnified Holder.
(b) Each Holder, severally and not jointly, shall indemnify and hold
harmless, the Company, its officers and directors and each person, if any, who
controls the Company within the meaning of the Securities Act, from and against
any loss, claim, damage or liability, joint or several, or any action in respect
thereof, to which the Company or any such director, officer, or controlling
person may become subject, insofar as any such loss, claim, damage or liability
or action arises out of, or is based upon:
(i) any untrue statement or alleged untrue statement of any material
fact contained in the Shelf Registration Statement or Prospectus or any
amendment or supplement thereto, or in any Blue Sky Application or
Marketing Materials; or
(ii) the omission or the alleged omission to state therein any
material fact necessary to make the statements therein not misleading,
14
but in each case only to the extent that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
such Holder (or its related Indemnified Holder) specifically for use therein,
and shall reimburse the Company and any such director, officer or controlling
person promptly upon demand for any legal or other expenses reasonably incurred
by the Company or any such director, officer or controlling person in connection
with investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action as such expenses are incurred. The foregoing
indemnity agreement is in addition to any liability which any Holder may
otherwise have to the Company and any such director, officer or controlling
person.
(c) Promptly after receipt by an indemnified party under this Section
6 of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 6, notify the indemnifying party in
writing of the claim or the commencement of that action; PROVIDED, HOWEVER, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 6 except to the extent it has
been materially prejudiced (including, without limitation, the forfeiture of
substantial rights and defenses) by such failure and, PROVIDED, FURTHER, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have to an indemnified party otherwise than under this
Section 6. If any such claim or action shall be brought against an indemnified
party, and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to assume
the defense thereof with counsel satisfactory to the indemnified party. After
notice from the indemnifying party to the indemnified party of its election to
assume the defense of such claim or action, the indemnifying party shall not be
liable to the indemnified party under this Section 6 for any legal or other
expenses subsequently incurred by the indemnified party in connection with the
defense thereof other than reasonable costs of investigation; PROVIDED, HOWEVER,
that a Majority of Holders shall have the right to employ separate counsel to
represent jointly a Majority of Holders and their respective officers,
directors, partners, employees and controlling persons who may be subject to
liability arising out of any claim in respect of which indemnity may be sought
by a Majority of Holders against the Company under this Section 6, if, (i) the
employment of such counsel shall have been specifically authorized in writing by
the indemnifying party, (ii) the indemnifying party shall have failed to assume
the defense of such action or employ counsel reasonably satisfactory to the
indemnified party or (iii) the named parties to any such action (including any
impleaded parties) include both the indemnified party and the indemnifying
party, and the indemnified party shall have been advised by such counsel that
there may be one or more legal defenses available to it that are different from
or additional to those available to the indemnifying party (in which case the
indemnifying party shall not have the right to assume the defense of such action
on behalf of the indemnified party), and in any such event the fees and expenses
of such separate counsel shall be paid by the Company. No indemnifying party
shall:
(i) without the prior written consent of the indemnified parties
(which consent shall not be unreasonably withheld or delayed) settle or
compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of
which indemnification or contribution may be sought hereunder (whether or
15
not the indemnified parties are actual or potential parties to such claim
or action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising
out of such claim, action, suit or proceeding, or
(ii) be liable for any settlement of any such action effected without
its written consent (which consent shall not be unreasonably withheld).
Notwithstanding the foregoing, if there is (A) a settlement with a written
consent from the indemnifying party or (B) a final judgment for the
plaintiff in any such action, the indemnifying party agrees to indemnify
and hold harmless any indemnified party from and against any loss or
liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 6 shall for
any reason be unavailable or insufficient to hold harmless an indemnified party
under Section 6(a) or 6(b) in respect of any loss, claim, damage or liability,
or action in respect thereof, referred to therein, each indemnifying party
shall, in lieu of indemnifying such indemnified party, contribute to the amount
paid or payable by such indemnified party as a result of such loss, claim,
damage or liability, or action in respect thereof:
(i) in such proportion as shall be appropriate to reflect the
relative benefits received by the Company from the offering and sale of
the Transfer Restricted Securities on the one hand and a Holder with
respect to the sale by such Holder of the Transfer Restricted Securities
on the other, or
(ii) if the allocation provided by clause (6)(d)(i) is not permitted
by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause 6(d)(i) but also the
relative fault of the Company on the one hand and the Holders on the other
with respect to the statements or omissions or alleged statements or
alleged omissions that resulted in such loss, claim, damage or liability
(or action in respect thereof), as well as any other relevant equitable
considerations.
The relative benefits received by the Company on the one hand and a Holder on
the other with respect to such offering and such sale shall be deemed to be in
the same proportion as the total net proceeds from the offering of the Notes
purchased under the Purchase Agreement (before deducting expenses) received by
the Company on the one hand, bear to the total proceeds received by such Holder
with respect to its sale of Transfer Restricted Securities on the other. The
relative fault shall be determined by reference to whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company or the Holders, the
intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
each Holder agree that it would not be just and equitable if the amount of
contribution pursuant to this Section 6(d) were determined by PRO RATA
allocation or by any other method of allocation that does not take into account
the equitable considerations referred to herein. The amount paid or payable by
an indemnified party as a result of the loss, claim, damage or liability, or
action in respect thereof, referred to above in this Section 6(d) shall be
deemed to include, for purposes of this Section 6(d), any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
16
provisions of this Section 6(d), no Holder shall be required to contribute any
amount in excess of the amount by which the total price at which the Transfer
Restricted Securities purchased by it were resold exceeds the amount of any
damages which such Holder has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The Holders' obligations to
contribute as provided in this Section 6(d) are several and not joint.
7. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. No Holder may
participate in any Underwritten Registration hereunder unless such Holder:
(i) agrees to sell such Holder's Transfer Restricted Securities on
the basis provided in any underwriting arrangements approved by the
Persons entitled hereunder to approve such arrangements; and
(ii) completes and executes all reasonable questionnaires, powers of
attorney, indemnities, underwriting agreements, lock-up letters and other
documents required under the terms of such underwriting arrangements.
8. MISCELLANEOUS.
(a) REMEDIES. The Company acknowledges and agrees that any failure by
the Company to comply with its obligations under Section 2 hereof may result in
material irreparable injury to the Initial Purchasers or the Holders for which
there is no adequate remedy at law, that it will not be possible to measure
damages for such injuries precisely and that, in the event of any such failure,
the Initial Purchasers or any Holder may obtain such relief as may be required
to specifically enforce the Company's obligations under Section 2 hereof. The
Company further agrees to waive the defense in any action for specific
performance that a remedy at law would be adequate.
(b) ACTIONS AFFECTING TRANSFER RESTRICTED SECURITIES. The Company
shall not, directly or indirectly, take any action with respect to the Transfer
Restricted Securities as a class that would adversely affect the ability of the
Holders of Transfer Restricted Securities to include such Transfer Restricted
Securities in a registration undertaken pursuant to this Agreement.
(c) NO INCONSISTENT AGREEMENTS. The Company will not, on or after the
date of this Agreement, enter into any agreement with respect to its securities
that is inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof. In addition, the Company shall
not grant to any of its security holders (other than the Holders of Transfer
Restricted Securities in such capacity) the right to include any of its
securities in the Shelf Registration Statement provided for in this Agreement
other than the Transfer Restricted Securities. The Company has not previously
entered into any agreement (which has not expired or been terminated) granting
any registration rights with respect to its securities to any Person which
rights conflict with the provisions hereof.
(d) AMENDMENTS AND WAIVERS. This Agreement may not be amended,
modified or supplemented, and waivers or consents to or departures from the
provisions hereof may not be given, unless the Company has obtained the written
consent of
17
a Majority of Holders or such greater percentage of the Holders as required by
the Indenture.
(e) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, facsimile
transmission, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of the
registrar under the Indenture or the transfer agent of the Common Stock,
as the case may be; and
(ii) if to the Company:
Artesyn Technologies, Inc.
0000 Xxxxxx Xxxx, Xxxxx 000
Xxxx Xxxxx, XX 00000
Attention: Treasurer
Fax: (000) 000-0000
Telephone: (000) 000-0000
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt acknowledged, if transmitted by
facsimile; and on the next Business Day, if timely delivered to an air courier
guaranteeing overnight delivery.
(f) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties, including
without limitation and without the need for an express assignment, subsequent
Holders of Transfer Restricted Securities; PROVIDED, HOWEVER, that (i) this
Agreement shall not inure to the benefit of or be binding upon a successor or
assign of a Holder unless and to the extent such successor or assign acquired
Transfer Restricted Securities from such Holder and (ii) nothing contained
herein shall be deemed to permit any assignment, transfer or other disposition
of Transfer Restricted Securities in violation of the terms of the Purchase
Agreement or the Indenture. If any transferee of any Holder shall acquire
Transfer Restricted Securities, in any manner, whether by operation of law or
otherwise, such Transfer Restricted Securities shall be held subject to all of
the terms of this Agreement, and by taking and holding such Transfer Restricted
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.
(g) 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 an original and all of which taken
together shall constitute one and the same agreement.
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(h) SECURITIES HELD BY THE COMPANY OR ITS AFFILIATES. Whenever the consent
or approval of Holders of a specified percentage of Transfer Restricted
Securities is required hereunder, Transfer Restricted Securities held by the
Company or its Affiliates shall not be counted in determining whether such
consent or approval was given by the Holders of such required percentage.
(i) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(j) GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with, the law of the State of New York, including without limitation,
Section 5-1401 of the New York General Obligations Law.
(k) SEVERABILITY. If any one or more of the provisions contained herein,
or the application thereof in any circumstance, is held invalid, illegal or
unenforceable, the validity, legality and enforceability of any such provision
in every other respect and of the remaining provisions contained herein shall
not be affected or impaired thereby.
(l) ENTIRE AGREEMENT. This Agreement is intended by the parties as a final
expression of their agreement and 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. 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 Transfer Restricted Securities. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
ARTESYN TECHNOLOGIES, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------
NAME: Xxxxxxx X. Xxxxxxx
TITLE: Treasurer
XXXXXX BROTHERS INC.
XXXXXXXX INC.
BY: XXXXXX BROTHERS INC.
By: /s/ Xxxxxxxxxxx X. Xxxxxxxx
---------------------------
AUTHORIZED REPRESENTATIVE
