EXHIBIT 4.6
5.75% CONVERTIBLE SUBORDINATED NOTES DUE 2006
REGISTRATION RIGHTS AGREEMENT
Dated as of December 14, 1999
by and among
General Semiconductor, Inc.
and
Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation
Chase Securities Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
This Registration Rights Agreement (this "AGREEMENT") is made and entered
into as of December 14, 1999, by and among General Semiconductor, Inc., a
Delaware corporation (the "COMPANY"), and Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation, Chase Securities Inc. and Xxxxxx Xxxxxxx & Co.
Incorporated (each an "INITIAL PURCHASER" and, collectively, the "INITIAL
PURCHASERS"), each of whom has agreed to purchase the Company's 5.75%
Convertible Subordinated Notes due 2006 (the "NOTES") pursuant to the Purchase
Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement, dated
December 8, 1999 (the "PURCHASE AGREEMENT"), by and among the Company and the
Initial Purchasers. In order to induce the Initial Purchasers to purchase the
Notes, the Company has agreed to provide the registration rights set forth in
this Agreement. The execution and delivery of this Agreement is a condition to
the obligations of the Initial Purchasers set forth in the Purchase Agreement.
Capitalized terms used herein and not otherwise defined shall have the meaning
assigned to them the Indenture, dated December 14, 1999, between the Company and
The Bank of New York, as Trustee, relating to the Notes (the "INDENTURE").
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have
the following meanings:
ACT: The Securities Act of 1933, as amended.
AFFILIATE: As defined in Rule 144 of the Act.
CERTIFICATED SECURITIES: Definitive Notes, as defined in the Indenture.
CLOSING DATE: The date hereof.
COMMON STOCK: Common Stock, $.01 par value per share, of
the Company.
COMMISSION: The Securities and Exchange Commission.
EFFECTIVENESS DEADLINE: As defined in Section 3(a) hereof.
EXCHANGE ACT: The Securities Exchange Act of 1934, as
amended.
EXEMPT RESALES: The transactions in which the Initial
Purchasers propose to sell the Notes to certain
"qualified institutional buyers," as such term is
defined in Rule 144A under the Act.
FILING DEADLINE: As defined in Section 3(a) hereof.
HOLDERS: As defined in Section 2 hereof.
LIQUIDATED DAMAGES: As defined in Section 4 hereof.
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NOTES: The up to $172,500,000 aggregate principal amount
of Convertible Subordinated Notes being issued
pursuant to the Purchase Agreement.
PROSPECTUS: The prospectus included in a Registration
Statement at the time such Registration Statement
is declared effective, as amended or supplemented
by any prospectus supplement and by all other
amendments thereto, including post-effective
amendments, all material incorporated by reference
into such Prospectus and any information
previously omitted in reliance upon Rule 430A of
the Act.
RECOMMENCEMENT DATE: As defined in Section 5(b) hereof.
REGISTRATION DEFAULT: As defined in Section 4 hereof.
REGISTRATION DEFAULT PERIOD: As defined in Section 4 hereof.
RULE 144: Rule 144 promulgated under the Act.
SHELF REGISTRATION STATEMENT: As defined in Section 3
hereof.
SUSPENSION NOTICE: As defined in Section 5(b) hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section
77aaa-77bbbb) as in effect on the date of the
Indenture.
TRANSFER RESTRICTED SECURITIES: The Notes and the shares of
Common Stock into which the Notes are
convertible,upon original issuance
thereof, and at all times subsequent
thereto, until, in the case of any such
Notes or shares of Common Stock, (a) the
date on which such Notes or shares of
Common Stock have been disposed of in
accordance with a Shelf Registration
Statement, (b) the date on which such
Notes or shares of Common Stock are
distributed to the public pursuant to
Rule 144 or are saleable pursuant to
Rule 144 (or similar provisions then
in effect) under the Act or (c) the date
on which such Notes or shares of Common
Stock cease to be outstanding.
SECTION 2. HOLDERS
A Person is deemed to be a holder of Transfer Restricted Securities (each,
a "HOLDER") whenever such Person owns Transfer Restricted Securities.
SECTION 3. SHELF REGISTRATION
(a) SHELF REGISTRATION. As soon as practicable after the Closing Date
but in no event later than 90 days after the Closing Date (such 90th day,
"FILING DEADLINE"), the Company shall file with the Commission a shelf
registration statement pursuant to Rule 415 under the Act (the "SHELF
REGISTRATION STATEMENT"), relating to all Transfer Restricted Securities, and
shall use its best efforts to cause such Shelf Registration Statement to become
effective on or prior to 180 days after the Closing Date (such 180th day, the
"EFFECTIVENESS DEADLINE").
The Company shall use its best efforts to keep any Shelf Registration
Statement required by this Section 3(a) continuously effective, supplemented and
amended as required by and subject to the provisions of Section 5(a) hereof to
the extent necessary to ensure that it is available for sales of Transfer
Restricted
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Securities by the Holders thereof entitled to the benefit of this Section 3(a),
and to ensure that it conforms with the requirements of this Agreement, the Act
and the policies, rules and regulations of the Commission as announced from time
to time, for the shorter of (i) two years (as extended pursuant to Section 5(b)
following the Closing Date) or (ii) the date on which all Transfer Restricted
Securities covered by such Shelf Registration Statement have been sold pursuant
thereto.
(b) PROVISION BY HOLDERS OF CERTAIN INFORMATION IN CONNECTION WITH
THE SHELF REGISTRATION STATEMENT. No Holder of Transfer Restricted Securities
may include any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
the Company in writing, within 20 days after receipt of a request therefor, the
information specified in Item 507 or 508 of Regulation S-K, as applicable, of
the Act for use in connection with any Shelf Registration Statement or
Prospectus or preliminary Prospectus included therein. No Holder of Transfer
Restricted Securities shall be entitled to liquidated damages pursuant to
Section 4 hereof unless and until such Holder shall have provided all such
information. Each selling Holder agrees to promptly furnish additional
information required to be disclosed in order to make the information previously
furnished to the Company by such Holder not materially misleading.
SECTION 4. LIQUIDATED DAMAGES
If (i) the Shelf Registration Statement is not filed with the
Commission on or prior to the Filing Deadline, (ii) such Shelf Registration
Statement has not been declared effective by the Commission on or prior to the
Effectiveness Deadline or (iii) such Shelf Registration Statement required by
this Agreement is filed and declared effective but shall thereafter cease to be
effective or fail to be usable for its intended purpose without being succeeded
immediately by a post-effective amendment to such Shelf Registration Statement
that cures such failure and that is itself declared effective immediately (each
such event referred to in clauses (i) through (iii), a "REGISTRATION DEFAULT"
and each period during which a Registration Default has occurred and is
continuing, a "REGISTRATION DEFAULT PERIOD") then the Company hereby agrees to
pay to each Holder of Transfer Restricted Securities affected thereby liquidated
damages ("LIQUIDATED DAMAGES") in an amount (and if such Transfer Restricted
Securities are comprised of Common Stock, such amount shall be calculated on the
basis of the principal amount of Notes from which such Transfer Restricted
Securities had been converted) which shall accrue at a per annum rate of 0.25%
for the first 90 days of the Registration Default Period, at a per annum rate of
0.50% for the second 90 days of the Registration Default Period, at a per annum
rate of 0.75% for the third 90 days of the Registration Default Period and at a
per annum rate of 1.00% thereafter for the remaining portion of the Registration
Default Period. Notwithstanding anything to the contrary set forth herein, (1)
upon filing of the Shelf Registration Statement, in the case of (i) above, (2)
upon the effectiveness of this Shelf Registration Statement, in the case of (ii)
above, or (3) upon the filing of a post-effective amendment to the Shelf
Registration Statement that causes the Shelf Registration Statement to again be
declared effective or made usable, in the case of (iii) above, or (4) once the
Transfer Restricted Securities are eligible for resale under Rule 144(k) of the
Act, the Liquidated Damages payable with respect to the Transfer Restricted
Securities as a result of such clause (i), (ii) or (iii), as applicable, shall
cease, at which time the interest rate shall be restored to its initial rate.
All accrued Liquidated Damages shall be paid to the Holders entitled
thereto, in the manner provided for the payment of interest in the Indenture, on
each Interest Payment Date as more fully set forth in the Indenture and the
Notes. Notwithstanding the fact that any Notes and/or shares of Common Stock for
which Liquidated Damages are due cease to be Transfer Restricted Securities, all
obligations of the Company to pay Liquidated Damages with respect to any such
Notes and/or shares of Common Stock shall survive until such time as all such
obligations shall have been satisfied in full.
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SECTION 5. SHELF REGISTRATION PROCEDURES
(a) PROCEDURES. In connection with the Shelf Registration Statement,
the Company shall:
(i) use its 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 (as indicated in the
information furnished to the Company pursuant to Section 3(b) hereof), and
pursuant thereto the Company will prepare and file with the Commission a Shelf
Registration Statement relating to the registration on any appropriate form
under the Act, which form shall be available for the sale of the Transfer
Restricted Securities in accordance with the intended method or methods of
distribution thereof (including, without limitation, one or more underwritten
offerings) within the time periods and otherwise in accordance with the
provisions hereof. The Company shall not be permitted to include in the Shelf
Registration Statement any securities other than the Transfer Restricted
Securities;
(ii) use its best efforts to contact all Holders of Transfer
Restricted Securities and notify each Holder of its right to include its
Transfer Restricted Securities in such Shelf Registration Statement;
(iii) use its best efforts to keep such Shelf Registration
Statement continuously effective and provide all requisite financial statements
for the period specified in Section 3 of this Agreement. Upon the occurrence of
any event that would cause any such Shelf Registration Statement or the
Prospectus contained therein (A) to contain an untrue statement of a material
fact or omit to state any material fact necessary to make the statements therein
not misleading or (B) not to be effective and usable for resale of Transfer
Restricted Securities during the period required by this Agreement, the Company
shall file promptly an appropriate amendment to such Shelf Registration
Statement curing such defect, and, if Commission review is required, use its
best efforts to cause such amendment to be declared effective as soon as
practicable. Notwithstanding the foregoing, the Company may suspend the offering
and sales under the Shelf Registration Statement for up to 60 days in each year
during which such Shelf Registration Statement is required to be effective and
usable hereunder (measured from the date of effectiveness of such Shelf
Registration Statement to successive anniversaries thereof) if (A) either (y)(1)
the Company shall be engaged in a material acquisition or disposition and
(2)(aa) such acquisition or disposition is required to be disclosed in the Shelf
Registration Statement, the related Prospectus, or any amendment or supplement
thereto, or the failure by the Company to disclose such transaction in the Shelf
Registration Statement or related Prospectus, or any amendment or supplement
thereto, as then amended or supplemented, would cause such Shelf Registration
Statement, Prospectus or amendment or supplement thereto, to contain an untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statement therein not misleading, in light of the circumstances
under which they were made, (bb) information regarding the existence of such
acquisition or disposition has not then been publicly disclosed by or on behalf
of the Company and (cc) a majority of the Board of Directors of the Company
determines in the exercise of its good faith judgment that disclosure of such
acquisition or disposition would not be in the best interest of the Company and
would have a material adverse effect on the consummation of such acquisition or
disposition or (z) a majority of the Board of Directors of the Company
determines in the exercise of its good faith judgment that compliance with the
disclosure obligations set forth in this Section 5(a)(iii) would otherwise have
a material adverse effect on the Company and its subsidiaries, taken as a whole,
and (B) the Company notifies the Holders within two business days after such
Board of Directors makes the relevant determination set forth in clause (A);
provided, however, that in each such case the applicable period specified in
Section 3 hereof during with the applicable Shelf Registration Statement is
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required to be kept effective and usable shall be extended by the number of days
during which such effectiveness was suspended pursuant to the foregoing and
Liquidated Damages shall not apply during any period in which the Company is
permitted to suspend offerings and sales under this sentence;
(iv) prepare and file with the Commission such amendments and
post-effective amendments to the Shelf Registration Statement as may be
necessary to keep such Shelf Registration Statement effective for the applicable
period set forth in Section 3 hereof, cause the Prospectus to be supplemented by
any required Prospectus supplement, and as so supplemented to be filed pursuant
to Rule 424 under the Act, and to comply fully with Rules 424, 430A and 462, as
applicable, under the Act in a timely manner; and comply with the provisions of
the Act with respect to the disposition of all Transfer Restricted Securities
covered by such Shelf Registration Statement during the applicable period in
accordance with the intended method or methods of distribution by the sellers
thereof set forth in such Shelf Registration Statement or supplement to the
Prospectus;
(v) advise the Holders and underwriters, if any, promptly and,
if requested by such Persons, confirm such advice in writing, (A) when the
Prospectus or any Prospectus supplement or post-effective amendment has been
filed, and, with respect to any 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 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, and (D) of
the existence of any fact or the happening of any event 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 in order to make the statements therein not
misleading, or that requires the making of any additions to or changes in the
Prospectus in order to make the statements therein, in the light of the
circumstances under which they were made, 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 best efforts to obtain the withdrawal
or lifting of such order at the earliest possible time;
(vi) subject to Section 5(a)(iii), if any fact or event
contemplated by Section 5(v)(D) above shall exist or have occurred, prepare a
supplement or post-effective amendment to the Shelf Registration Statement or
related Prospectus or any document incorporated therein by reference or file any
other required document so that, as thereafter delivered to the purchasers of
Transfer Restricted Securities, the Prospectus will not contain an 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;
(vii) furnish to each Holder named in any Shelf Registration
Statement or Prospectus, who shall certify to the Company that they have a
present intention to sell Transfer Restricted Securities, and underwriter, if
any, in connection with such sale before filing with the Commission, copies of
any Shelf Registration Statement or any Prospectus included therein or any
amendments or supplements to any such Shelf Registration Statement or Prospectus
(including all documents incorporated by reference after the initial filing of
such Shelf Registration Statement), except that the foregoing provision will not
apply to
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regular periodic reports filed with the Commission on Forms 10-Q or 10-K or
Current Reports on Form 8-K (or any similar successor forms), or exhibits to any
such documents unless requested, which documents will be subject to the review
and comment of such Persons in connection with such sale, if any, for a period
of at least five Business Days, and the Company will not file any such Shelf
Registration Statement or Prospectus or any amendment or supplement to any such
Shelf Registration Statement or Prospectus (including all such documents
incorporated by reference) to which such Persons shall reasonably object within
five Business Days after the receipt thereof;
(viii) promptly prior to the filing of any document that is to
be incorporated by reference into a Shelf Registration Statement or Prospectus,
provide copies of such document to the Holders except that the foregoing
provision will not apply to regular periodic reports filed with the Commission
on Forms 10-Q or 10-K or Current Reports on Form 8-K (or any similar successor
forms), or exhibits to any such documents unless requested, and underwriters, if
any, in connection with such sale, make the Company's representatives available
for discussion of such document and other customary due diligence matters, and
include such information in such document prior to the filing thereof as such
Holders may reasonably request;
(ix) make available at reasonable times for inspection by the
Holders and underwriters, if any, and any attorney or accountant retained by
such Holders, who shall certify to the Company that they have a present
intention to sell Transfer Restricted Securities, or underwriters, if any, all
financial and other records, pertinent corporate documents of the Company and
cause the Company's officers, directors and employees to supply all information
reasonably requested by any such Holder, underwriters, if any, attorney or
accountant in connection with such Shelf Registration Statement or any
post-effective amendment thereto subsequent to the filing thereof and prior to
its effectiveness which, in the reasonable judgment of counsel for the Company,
are necessary to conduct a reasonable investigation within the meaning of
Section 11 of the Act; PROVIDED, HOWEVER, that each such party shall be required
to maintain in confidence and not disclose to any other person any information
or records designated in writing by the Company as being confidential, until
such time as (A) such information becomes a matter of public record (whether by
virtue of its inclusion in such registration statement or otherwise), or (B)
such person shall be required, or shall deem it advisable, so to disclose such
information pursuant to a subpoena or order of any court or other governmental
agency or body having jurisdiction over the matter (subject to the requirements
of such order, and only after such person shall have given the Company prior
written notice thereof), or (C) such information is required to be set forth in
such registration statement or the prospectus included therein or in an
amendment to such registration statement or an amendment or supplement to such
prospectus in order that such registration statement, prospectus, amendment or
supplement, as the case may be, does not contain an untrue statement of a
material fact or omit to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading in light of
the circumstances then existing;
(x) if requested by any Holders or underwriters, if any, in
connection with such sale, promptly include in any Shelf Registration Statement
or Prospectus, pursuant to a supplement or post-effective amendment if
necessary, such information as such Holders or underwriters, if any, may
reasonably request to have included therein, including, without limitation,
information relating to the "Plan of Distribution" of the Transfer Restricted
Securities; and make all required filings of such Prospectus supplement or
post-effective amendment as soon as practicable after the Company is notified of
the matters to be included in such Prospectus supplement or post-effective
amendment;
(xi) furnish to each Holder and underwriter, if any, without
charge, at least one copy of the Shelf Registration Statement, as first filed
with the Commission, and of each amendment thereto,
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including, at the request of such Holder, all documents incorporated by
reference therein and all exhibits (including, at the request of such Holder,
exhibits incorporated therein by reference);
(xii) deliver to each Holder and underwriter, 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;
the Company hereby consents to the use (in accordance with law) of the
Prospectus and any amendment or supplement thereto by each Holder and each
underwriter, 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;
(xiii) upon the request of Holders of 25% or more in principal
amount (or number of shares, as the case may be) of Transfer Restricted
Securities or an initial purchaser in the case where an initial purchaser holds
Transfer Restricted Securities acquired as part of its initial placement, if
any, enter into such agreements (including underwriting agreements) and make
such representations and warranties and take all such other actions in
connection therewith in order to expedite or facilitate the disposition of the
Transfer Restricted Securities pursuant to any Shelf Registration Statement
contemplated by this Agreement as may be reasonably requested by such Person in
connection with any sale or resale pursuant to any applicable Shelf Registration
Statement and in such connection, the Company shall:
(A) furnish (or in the case of paragraphs (2), (3) and (4) below, use
its best efforts to cause to be furnished) to each Holder or
underwriter, if any, upon the effectiveness of the Shelf
Registration Statement:
(1) a certificate, dated such date, signed on behalf of the
Company by (x) the President or any Vice President and (y) a
principal financial or accounting officer of the Company,
confirming, as of the date thereof, the matters set forth in
Sections 6(aa), 9(a) and 9(b) of the Purchase Agreement and
such other similar matters as the Holders may reasonably
request;
(2) an opinion, dated the date effectiveness of the Shelf
Registration Statement, of outside counsel for the Company
covering matters similar to those set forth in Exhibit A of
the Purchase Agreement and such other matters as the selling
Holders may reasonably request, including the ultimate
paragraph of Exhibit A relating to the Shelf Registration
Statement;
(3) an opinion, dated the date effectiveness of the Shelf
Registration Statement, of general counsel for the Company
covering matters similar to those set forth in Exhibit B of
the Purchase Agreement and such other matter as the selling
Holders may reasonably request; and
(4) a customary comfort letter, dated as of the date of
effectiveness of the Shelf Registration Statement 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, and affirming the matters set forth in the comfort
letters delivered pursuant to Section 9(g) of the Purchase
Agreement, provided, however, the Company is not obligated to
pay the costs and expenses of counsel for the selling
shareholders; and
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(B) deliver such other documents and certificates as may be reasonably
requested by the Holders and underwriters, if any, to evidence
compliance with the matters set forth in clause (A) above and with
any customary conditions contained in any agreement entered into by
the Company pursuant to this clause (xiii) which satisfy the above
requirement;
(xiv) prior to any public offering of Transfer Restricted
Securities, cooperate with the Holders, underwriters, 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 as such Persons may 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 applicable Registration
Statement; PROVIDED, HOWEVER, that the Company shall not be required to register
or qualify as a foreign corporation where it is not now so qualified but for the
requirement of this clause (xiv) or to take any action that would subject it to
the service of process in suits or to taxation, other than as to matters and
transactions relating to the Shelf Registration Statement, in any jurisdiction
where it is not now so subject, or make any changes to its certificate of
incorporation or by-laws or any agreement between the Company and its
stockholders;
(xv) in connection with any sale of Transfer Restricted
Securities that will result in such securities no longer being Transfer
Restricted Securities, cooperate with the Holders to facilitate the timely
preparation and delivery of certificates representing Transfer Restricted
Securities to be sold and not bearing any restrictive legends; and to register
such Transfer Restricted Securities in such denominations and such names as the
Holders may request at least two Business Days prior to such sale of Transfer
Restricted Securities;
(xvi) (A) list all shares of Common Stock covered by such Shelf
Registration Statement on any securities exchange on which the Common Stock is
then listed or (B) authorize for quotation on the National Association of
Securities Dealers Automated Quotation System ("NASDAQ") or the National Market
System of NASDAQ all shares of Common Stock covered by such Shelf Registration
Statement if the Common Stock is then so authorized for quotation;
(xvii) use its best efforts to cause the disposition of the
Transfer Restricted Securities covered by the Shelf Registration Statement to be
registered with or approved by such other governmental agencies or authorities
as may be necessary to enable the seller or sellers thereof to consummate the
disposition of such Transfer Restricted Securities, subject to the proviso
contained in clause (xiv) above;
(xviii) provide a CUSIP number for all Transfer Restricted
Securities not later than the effective date of a Shelf Registration Statement
covering such Transfer Restricted Securities and provide the Trustee under the
Indenture with printed certificates for the Transfer Restricted Securities which
are in a form eligible for deposit with the Depository Trust Company;
(xix) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make generally available
to its security holders with regard to any applicable Registration Statement, as
soon as practicable, a consolidated earnings statement meeting the requirements
of Rule 158 (which need not be audited) covering a twelve-month period beginning
after the effective date of the Registration Statement (as such term is defined
in paragraph (c) of Rule 158 under the Act), provided that the obligations of
this clause (xix) shall be satisfied by the timely filing of quarterly and
annual reports on Forms 10-Q and 10-K under the Exchange Act;
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(xx) if underwritten, make appropriate officers of the Company
available to the underwriters for meetings with prospective purchasers of the
Transfer Restricted Securities and prepare and present to potential investors
customary "road show" material in a manner consistent with other new issuances
of other securities similar to the Transfer Restricted Securities;
(xxi) 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 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 best efforts to cause the Trustee 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; and
(xxii) provide promptly to each Holder upon request each
document filed with the Commission pursuant to the requirements of Section 13 or
Section 15(d) of the Exchange Act.
(xxiii) the Company may require each seller of Transfer
Restricted Securities as to which any registration is being effected to furnish
to it such information regarding such seller as may be required by the staff of
the Commission to be included in the Shelf Registration Statement; the Company
may exclude from such registration the Transfer Restricted Securities of any
seller who unreasonably fails to furnish such information within a reasonable
period of time after receiving such request; and the Company shall have no
obligation to register under the Securities Act the Transfer Restricted
Securities of any seller who fails to furnish such information as provided in
this paragraph.
(b) RESTRICTIONS ON HOLDERS. Each Holder agrees by acquisition of a
Transfer Restricted Security that, upon receipt of the notice referred to in
Section 5(a)(v)(C) or any notice from the Company of the existence of any fact
of the kind described in Section 5(a)(v)(D) hereof (in each case, a "SUSPENSION
NOTICE"), such Holder will forthwith discontinue disposition of Transfer
Restricted Securities pursuant to the applicable Registration Statement until
(i) such Holder's has received copies of the supplemented or amended Prospectus
contemplated by Section 5(a)(vi) 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 (in each case, the "RECOMMENCEMENT DATE"). Each
Holder receiving a Suspension Notice hereby agrees that it will either (i)
destroy any Prospectuses, other than permanent file copies, then in such
Holder's possession which have been replaced by the Company with more recently
dated Prospectuses or (ii) 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 the Suspension Notice. The time period regarding the
effectiveness of the Shelf Registration Statement set forth in Section 3 hereof,
shall be extended by a number of days equal to the number of days in the period
from and including the date of delivery of the Suspension Notice to the date of
delivery of the Recommencement Date.
SECTION 6. REGISTRATION EXPENSES
(a) All expenses incident to the Company's performance of or compliance
with this Agreement will be borne by the Company, regardless of whether a Shelf
Registration Statement required by this Agreement becomes effective, including
without limitation: (i) all registration and filing fees and expenses; (ii) all
fees and expenses of compliance with federal securities and state Blue Sky or
securities laws; (iii) all
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expenses of printing (including printing certificates for the Common Stock to be
issued upon conversion of the Notes and printing of Prospectuses), messenger and
delivery services and telephone; (iv) all fees and disbursements of counsel for
the Company and the reasonable fees and disbursements of not more than one
counsel chosen by the Holders of a majority in principal amount (number of
shares, if applicable) of the Transfer Restricted Securities for whose benefit
the Shelf Registration Statement is being prepared; (v) all application and
filing fees in connection with listing 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
Holders of Transfer Restricted Securities being registered shall pay all agency
fees and commissions and underwriting discounts and commissions and transfer
taxes, if any, attributable to the sale of such Transfer Restricted Securities.
The Company will, in any event, bear its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting 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 any Shelf Registration Statement required by this
Agreement, the Company will reimburse the Initial Purchasers and the Holders
selling Transfer Restricted Securities pursuant to the "Plan of Distribution"
contained in the Shelf Registration Statement, for the reasonable fees and
disbursements of not more than one counsel chosen by the Holders of a majority
in principal amount (number of shares, if applicable) of the Transfer Restricted
Securities for whose benefit such Shelf Registration Statement is being
prepared.
SECTION 7. INDEMNIFICATION
(a) The Company agrees to indemnify and hold harmless each Holder, its
directors, its officers and each Person, if any, who controls such Holder
(within the meaning of Section 15 of the Act and Section 20 of the Exchange
Act), from and against any and all losses, claims, damages, liabilities or
judgments, (including without limitation, any reasonable legal or other expenses
incurred in connection with investigating or defending any matter, including any
action that could give rise to any such losses, claims, damages, liabilities or
judgments) caused by any untrue statement or alleged untrue statement of a
material fact contained in any Shelf Registration Statement, preliminary
prospectus or Prospectus (or any amendment or supplement thereto) provided by
the Company to any Holder or any prospective purchaser of registered Notes or
registered shares of Common Stock or caused by any omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, except insofar as such losses,
claims, damages, liabilities or judgments are caused by an untrue statement or
omission or alleged untrue statement or omission that is based upon information
relating to any of the Holders furnished in writing to the Company by any of the
Holders or such untrue statement or omission or alleged untrue statement or
omission is contained in the preliminary Prospectus and is corrected in the
final Prospectus.
(b) Each Holder of Transfer Restricted Securities agrees, severally and not
jointly, to indemnify and hold harmless the Company and its directors and
officers, and each person, if any, who controls (within the meaning of Section
15 of the Act or Section 20 of the Exchange Act) the Company, to the same extent
as the foregoing indemnity from the Company set forth in Section 7(a) above, but
only with reference to information relating to such Holder furnished in writing
to the Company by such Holder expressly for use
10
in any Registration Statement. In case any action or proceeding shall be brought
against the Company, or any of its directors or officers or any such controlling
person in respect of which indemnity may be sought against a Holder of Transfer
Restricted Securities, such Holder shall have the rights and duties given the
Company pursuant to this Section 7, and the Company, its directors or such
controlling person shall have the rights and duties given to each Holder by the
preceding paragraph of this Section 7. In no event shall any Holder, its
directors, its officers or any Person, if any, who controls such Holder be
liable or responsible for any amount in excess of the amount by which the total
amount received by such Holder with respect to its sale of Transfer Restricted
Securities pursuant to a Shelf Registration Statement exceeds (i) the amount
paid by such Holder for such Transfer Restricted Securities and (ii) the amount
of any damages that such Holder, its directors, its officers or any Person, if
any, who controls such Holder has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission.
(c) In case any action shall be commenced involving any person in respect
of which indemnity may be sought pursuant to Section 7(a) or 7(b) (the
"INDEMNIFIED PARTY"), the indemnified party shall promptly notify the person
against whom such indemnity may be sought (the "INDEMNIFYING PERSON") in writing
and the indemnifying party shall assume the defense of such action, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all fees and expenses of such counsel, as incurred (except that
in the case of any action in respect of which indemnity may be sought pursuant
to both Sections 7(a) and 7(b), a Holder shall not be required to assume the
defense of such action pursuant to this Section 7(c), but may employ separate
counsel and participate in the defense thereof, but the fees and expenses of
such counsel, except as provided below, shall be at the expense of the Holder).
Any indemnified party shall have the right to employ separate counsel in any
such action and participate in the defense thereof, but the fees and expenses of
such counsel shall be at the expense of the indemnified party unless (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 which 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). In any such case, the indemnifying party
shall not, in connection with any one action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the fees and expenses of
more than one separate firm of attorneys (in addition to any local counsel) for
all indemnified parties and all such fees and expenses, to the extent
reasonable, shall be reimbursed as they are incurred. Such firm shall be
designated in writing by a majority of the Holders, in the case of the parties
indemnified pursuant to Section 7(a), and by the Company, in the case of parties
indemnified pursuant to Section 7(b). The indemnifying party shall not be
obligated to indemnify and hold harmless any indemnified party from and against
any losses, claims, damages, liabilities and judgments by reason of any
settlement of any action effected without the indemnifying party's written
consent. No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement or compromise of, or consent to the
entry of judgment with respect to, any pending or threatened action in respect
of which the indemnified party is or could have been a party and indemnity or
contribution may be or could have been sought hereunder by the indemnified
party, unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability on claims that
are or could have been the subject matter of such action and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of the indemnified party.
11
(d) To the extent that the indemnification provided for in this Section 7
is unavailable to an indemnified party in respect of any losses, claims,
damages, liabilities or judgments referred to therein, then each indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages, liabilities or judgments (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company, on the one
hand, and the Holders, on the other hand, from their sale of Transfer Restricted
Securities or (ii) if the allocation provided by clause 7(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 7(d)(i) above but also the relative
fault of the Company on the one hand, and of the Holders, on the other hand, in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or judgments, as well as any other relevant
equitable considerations. The relative fault of the Company, on the one hand,
and of the Holders, on the other hand, shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company, on the one hand, or by the Holders, on the
other hand, and the parties' relative intent, 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 contribution pursuant to this Section 7(d) were determined by pro rata
allocation (even if the Holders were treated as one entity for such purpose) or
by any other method of allocation which does not take account of the equitable
considerations referred to in the immediately preceding paragraph. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages, liabilities or judgments referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses incurred by such indemnified party in
connection with investigating or defending any matter, including any action that
could have given rise to such losses, claims, damages, liabilities or judgments.
Notwithstanding the provisions of this Section 7, no Holder or its related
Indemnified Holders shall be required to contribute, in the aggregate, any
amount in excess of the amount by which the total received by such Holder with
respect to the sale of its Transfer Restricted Securities pursuant to a
Registration Statement exceeds (i) the amount paid by such Holder for such
Transfer Restricted Securities and (ii) 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 Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Holders' obligations to contribute pursuant to this
Section 7(d) are several in proportion to the respective principal amount of
Transfer Restricted Securities held by each of the Holders hereunder and not
joint.
SECTION 8. RULE 144A AND RULE 144
The Company agrees with each Holder, for so long as any Transfer Restricted
Securities remain outstanding and during any period in which the Company (i) is
not subject to Section 13 or 15(d) of the Exchange Act, to make available, upon
request of any Holder of Transfer Restricted Securities, to any Holder or
beneficial owner of Transfer Restricted Securities in connection with any sale
thereof and any prospective purchaser of Transfer Restricted Securities
designated by such Holder or beneficial owner, the information required by Rule
144(d)(4) under the Act in order to permit resales of such Transfer Restricted
Securities pursuant to Rule 144A, and (ii) is subject to Section 13 or 15(d) of
the Exchange Act, to make all filings required thereby in a timely manner in
order to permit resales of such Transfer Restricted Securities pursuant to Rule
144.
12
SECTION 9. UNDERWRITTEN REGISTRATIONS
(a) If any of the Transfer Restricted Securities covered by any Shelf
Registration Statement are to be sold in an underwritten offering, the
investment banker or investment bankers and manager or managers that will
administer the offering will be selected by the Holders of a majority in amount
of such Transfer Restricted Securities included in such offering, subject to the
consent of the Company (which will not be unreasonably withheld or delayed).
No Holder of Transfer Restricted Securities may participate in any
underwritten registration hereunder unless such Holder (i) agrees to sell its
Transfer Restricted 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 required
under the terms of such underwriting arrangements.
(b) Each Holder of Transfer Restricted Securities agrees, if requested
(pursuant to a timely written notice) by the managing underwriters in an
underwritten offering made pursuant to a Shelf Registration Statement, not to
effect any private sale or distribution (including a sale pursuant to Rule
144(k) and Rule 144A, but excluding non-public sales to any of its affiliates,
officers, directors, employees and controlling persons) of any of the Notes, in
the case of an underwritten offering of the Notes, or the Common Stock, in the
case of an underwritten offering of shares of Common Stock constituting Transfer
Restricted Securities, during the period beginning 10 days prior to, and ending
90 days after, the closing date of such underwritten offering.
The foregoing provisions of Section 9(b) shall not apply to any Holder of
Transfer Restricted Securities if such Holder is prevented by applicable statute
or regulation from entering into any such agreement.
(c) If any of the Transfer Restricted Securities covered by any Shelf
Registration are to be sold in an underwritten offering, the underwriters, their
controlling persons and their respective officers, directors, employees,
representatives and agents shall be entitled to indemnity (substantially similar
to the indemnity set forth in Section 7 of the Agreement) from the Company and
the Holders, which indemnity may be set forth in an underwriting agreement.
SECTION 10. MISCELLANEOUS
(a) REMEDIES. The Company acknowledges and agrees that any failure by the
Company to comply with its obligations under Section 3 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 3 hereof. The
Company further agrees to waive the defense in any action for specific
performance that a remedy at law would be adequate.
(b) 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. 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. The rights
granted to the Holders hereunder do not in any
13
way conflict with and are not inconsistent with the rights granted to the
holders of the Company's securities under any agreement in effect on the date
hereof.
(c) NO PIGGYBACKS ON SHELF REGISTRATION STATEMENT. 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 any Shelf Registration Statement provided for in this Agreement
other than the Transfer Restricted Securities.
(d) AMENDMENTS AND WAIVERS. The provisions of 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 (i) in the case of Section 4
hereof and this Section 10(d)(i), the Company has obtained the written consent
of Holders of all outstanding Transfer Restricted Securities and (ii) in the
case of all other provisions hereof, the Company has obtained the written
consent of Holders of a majority of the outstanding principal amount (and
shares, if applicable) of Transfer Restricted Securities (excluding Transfer
Restricted Securities held by the Company or its Affiliates).
(e) THIRD PARTY BENEFICIARY. The Holders shall be third party beneficiaries
to the agreements made hereunder between the Company, on the one hand, and the
Initial Purchasers, on the other hand, and shall have the right to enforce such
agreements directly to the extent they may deem such enforcement necessary or
advisable to protect its rights or the rights of Holders hereunder.
(f) 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, telecopier, 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, with a copy to the Registrar under the
Indenture; and
(ii) if to the Company:
General Semiconductor, Inc
Xxx Xxxxxxxx Xxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxx X.Xxxxx, Esq.
With a copy to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxx Xxxxxxx, Esq.
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 receipt
acknowledged, if telecopied; and on the next business day, if timely delivered
to an air courier guaranteeing overnight delivery.
14
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
(g) 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, that nothing herein shall
be deemed to permit any assignment, transfer or other disposition of Transfer
Restricted Securities in violation of the terms hereof or 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, including
the restrictions on resale set forth in this Agreement and, if applicable, the
Purchase Agreement, and such Person shall be entitled to receive the benefits
hereof.
(h) 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.
(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 LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICT OF LAW RULES THEREOF.
(k) SEVERABILITY. In the event that 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 with respect to the Transfer
Restricted Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
GENERAL SEMICONDUCTOR, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Chairman, President and
Chief Financial Officer
XXXXXXXXX, XXXXXX & XXXXXXXX
15
SECURITIES CORPORATION
CHASE SECURITIES INC.
XXXXXX XXXXXXX & CO. INCORPOTATED
By: XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
By: /s/ Xxxxxxx Xxxxxx
---------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
