Informatica Corporation Registration Rights Agreement
This Registration Rights Agreement (the “Agreement”) is made and entered
into as of March 13, 2006, by and among Informatica Corporation, a Delaware corporation (the
“Company”), and UBS Securities LLC (the “Initial Purchaser”) pursuant to that
certain Purchase Agreement, dated March 8, 2006 (the “Purchase Agreement”), between the
Company and the Initial Purchaser.
In order to induce the Initial Purchaser to enter into the Purchase Agreement, the Company has
agreed to provide the registration rights set forth in this Agreement. The execution and delivery
of this Agreement is a condition to the closing under the Purchase Agreement. The terms “herein,”
“hereof,” “hereto,” “hereinafter” and similar terms, as used in this Agreement, shall in each case
refer to this Agreement as a whole and not to any particular section, paragraph, sentence or other
subdivision of this Agreement.
The Company agrees with the Initial Purchaser (i) for its benefit as Initial Purchaser and
(ii) for the benefit of the beneficial owners (including the Initial Purchaser) from time to time
of the Covered Securities (as defined herein) (each of the foregoing a “Holder” and,
together, the “Holders”), as follows:
1. Definitions. Capitalized terms used herein without definition shall have the
respective meanings set forth in the Purchase Agreement. As used in this Agreement, the following
terms shall have the following meanings:
(a) “additional interest” has the meaning set forth in Section 2(e) hereof.
(b) “Additional Interest Accrual Period” has the meaning set forth in Section
2(e) hereof.
(c) “Additional Interest Amount” has the meaning set forth in Section 2(e)
hereof.
(d) “Additional Interest Payment Date” means each March 15 and September 15 of
each year.
(e) “Affiliate” means, with respect to any specified person, an “affiliate,” as
defined in Rule 144, of such person.
(f) “Amendment Effectiveness Deadline Date” has the meaning set forth in
Section 2(d) hereof.
(g) “Automatic Shelf Registration Statement” has the meaning ascribed to it in
Rule 405.
(h) “Business Day” means each day on which the New York Stock Exchange is open
for trading.
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(i) “Claim” has the meaning set forth in Section 10(o) hereof.
(j) “Common Stock” means the shares of common stock, par value $0.001 per
share, of the Company and any other shares of capital stock as may constitute “Common Stock”
for purposes of the Indenture, including the Underlying Common Stock.
(k) “Conversion Rate” has the meaning ascribed to it in the Indenture.
(l) “Covered Security” has the meaning set forth in Section 1(qq) hereof.
(m) “DTC” has the meaning set forth in Section 3(n) hereof.
(n) “Effectiveness Deadline Date” has the meaning set forth in Section 2(a)
hereof.
(o) “Effectiveness Period” means the period from the date of effectiveness of
the Initial Shelf Registration Statement (and any Subsequent Shelf Registration Statement)
until the earliest of:
(i) the date that is two years after the last date of original issuance of any
of the Notes;
(ii) the date on which all of the Covered Securities may be resold without
restriction pursuant to the provisions of Rule 144(k) or any successor rule thereto;
or
(iii) the date on which all of the Covered Securities have been effectively
registered under the Securities Act and disposed of in accordance with the
Registration Statement relating thereto.
(p) “Event” has the meaning set forth in Section 2(e) hereof.
(q) “Event Date” has the meaning set forth in Section 2(e) hereof.
(r) “Exchange Act” means the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the SEC promulgated thereunder.
(s) “Filing Deadline Date” has the meaning set forth in Section 2(a) hereof.
(t) “Form S-1” means Form S-1 under the Securities Act.
(u) “Form S-3” means Form S-3 under the Securities Act.
(v) “Holder” has the meaning set forth in the preamble hereto.
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(w) “Holder Information” has the meaning set forth in Section 6(b) hereof.
(x) “Indemnified Party” has the meaning set forth in Section 6(c) hereof.
(y) “Indemnifying Party” has the meaning set forth in Section 6(c) hereof.
(z) “Indenture” means the Indenture, dated as of March 13, 2006, between the
Company and the Trustee, pursuant to which the Notes are being issued.
(aa) “Initial Purchaser” has the meaning set forth in the preamble hereto.
(bb) “Initial Shelf Registration Statement” has the meaning set forth in
Section 2(a) hereof.
(cc) “Issue Date” means March 13, 2006.
(dd) “Managing Underwriters” has the meaning set forth in Section 8(a) hereof.
(ee) “Material Event” has the meaning set forth in Section 3(j) hereof.
(ff) “Notes” means the 3.0% Convertible Senior Notes due 2026 of the Company to
be purchased pursuant to the Purchase Agreement.
(gg) “Notice and Questionnaire” means a written questionnaire containing
substantially the information called for by the “Selling Securityholder Notice and
Questionnaire” attached as Annex A to the Offering Memorandum of the Company, dated March 8,
2006, relating to the Notes.
(hh) “Notice Holder” means, on a given date, any Holder that has delivered a
Notice and Questionnaire to the Company on or prior to such date, provided not all of such
Holder’s Registrable Securities that have been registered for resale pursuant to a Notice
and Questionnaire have been sold in accordance with a Shelf Registration Statement.
(ii) “Option Purchase Date” has the meaning ascribed to it in the Indenture.
(jj) “Proceeding” has the meaning set forth in Section 6(c) hereof.
(kk) “Prospectus” means each prospectus relating to any Shelf Registration
Statement, including all supplements and amendments to such prospectus, in each case in the
form furnished pursuant to this Agreement by the Company to Holders or filed by the Company
with the SEC pursuant to Rule 424 or as part of such Shelf Registration Statement, as the
case may be, and in each case including all materials, if any, incorporated by reference or
deemed to be incorporated by reference in such prospectus.
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(ll) “Purchase Agreement” has the meaning set forth in the preamble hereof.
(mm) “Record Date” means, (i) March 1, with respect to an Additional Interest
Payment Date that occurs on March 15 and (ii) September 1, with respect to an Additional
Interest Payment Date that occurs on September 15.
(nn) “Record Holder” means, with respect to an Additional Interest Payment Date
relating to a Registrable Security for which any Additional Interest Amount has accrued, a
Notice Holder that was the holder of record of such Registrable Security at the close of
business on the Record Date relating to such Additional Interest Payment Date.
(oo) “Redemption” has the meaning ascribed to it in the Indenture.
(pp) “Redemption Date” has the meaning ascribed to it in the Indenture.
(qq) “Registrable Securities” means the Notes, until such Notes have been
converted into the Underlying Common Stock, and, at all times, the Underlying Common Stock
and any securities into or for which such Underlying Common Stock has been converted or
exchanged, and any security issued with respect thereto upon any stock dividend, split or
similar event (each of the foregoing, a “Covered Security”) until, in the case of
any such security, the earliest of:
(i) the date that is two years after the last date of original issuance of any
of the Notes;
(ii) the date on which such security may be resold without restriction pursuant
to the provisions of Rule 144(k) or any successor rule thereto; or
(iii) the date on which such security has been effectively registered under the
Securities Act and disposed of in accordance with the Registration Statement
relating thereto.
(rr) “Registration Expenses” has the meaning set forth in Section 5 hereof.
(ss) “Registration Statement” means each registration statement, under the
Securities Act, of the Company that covers any of the Registrable Securities pursuant to
this Agreement, including amendments and supplements to such registration statement and
including all post-effective amendments to, all exhibits of, and all materials incorporated
by reference or deemed to be incorporated by reference in, such registration statement,
amendment or supplement.
(tt) “Repurchase at Holder’s Option” has the meaning ascribed to it in the
Indenture.
(uu) “Repurchase Date” has the meaning ascribed to it in the Indenture.
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(vv) “Repurchase Upon Repurchase Event” has the meaning ascribed to it in the
Indenture.
(ww) “Rule 144” means Rule 144 under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted by the SEC.
(xx) “Rule 144A” means Rule 144A under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted by the SEC.
(yy) “Rule 405” means Rule 405 under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted by the SEC.
(zz) “Rule 415” means Rule 415 under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted by the SEC.
(aaa) “Rule 424” means Rule 424 under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted by the SEC.
(bbb) “Rule 430B” means Rule 430B under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted by the SEC.
(ccc) “Rule 456” means Rule 456 under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted by the SEC.
(ddd) “Rule 457” means Rule 457 under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted by the SEC.
(eee) “SEC” means the Securities and Exchange Commission.
(fff) “Securities Act” means the Securities Act of 1933, as amended, and the
rules and regulations promulgated by the SEC thereunder.
(ggg) “Shelf Registration Statement” means the Initial Shelf Registration
Statement and any Subsequent Shelf Registration Statement.
(hhh) “Subsequent Shelf Registration Statement” has the meaning set forth in
Section 2(b) hereof.
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(iii) “Subsequent Shelf Registration Statement Effectiveness Deadline Date” has
the meaning set forth in Section 2(d) hereof.
(jjj) “Suspension Notice” has the meaning set forth in Section 3(j) hereof.
(kkk) “Suspension Period” has the meaning set forth in Section 3(j) hereof.
(lll) “TIA” means the Trust Indenture Act of 1939, as amended.
(mmm) “Trustee” means U.S. Bank National Association, the trustee under the
Indenture.
(nnn) “Underlying Common Stock” means the Common Stock issuable upon conversion
of the Notes.
2. Shelf Registration.
(a) The Company shall prepare and file, or cause to be prepared and filed, with the SEC
a Registration Statement (the “Initial Shelf Registration Statement”) for an
offering to be made on a delayed or continuous basis pursuant to Rule 415 registering the
resale from time to time by Holders thereof of all of the Registrable Securities (or, if
registration of Registrable Securities not held by Notice Holders is not permitted by the
rules and regulations of the SEC, then registering the resale from time to time by Notice
Holders of their Registrable Securities). The Initial Shelf Registration Statement shall be
filed with the SEC by the date that is ninety (90) days after the Issue Date in the case of
an Initial Shelf Registration Statement that is not an Automatic Shelf Registration
Statement, or by the date that is one hundred twenty (120) days after the Issue Date, in the
case of an Initial Shelf Registration Statement that is an Automatic Shelf Registration
Statement (the “Filing Deadline Date”). The Initial Shelf Registration Statement
shall provide for the registration of such Registrable Securities for resale by such Holders
in accordance with any reasonable method of distribution elected by the Holders. In no
event shall the Initial Shelf Registration Statement be filed with the SEC prior to
completion of the offering of the Notes contemplated by the Purchase Agreement. The Company
shall use its commercially reasonable efforts to (i) in the case of an Initial Shelf
Registration Statement that is not an Automatic Shelf Registration Statement, cause the
Initial Shelf Registration Statement to become effective under the Securities Act as
promptly as practicable but in any event by the date (the “Effectiveness Deadline
Date”) that is one hundred eighty (180) days after the Issue Date and (ii) keep the
Initial Shelf Registration Statement (and any Subsequent Shelf Registration Statement)
effective under the Securities Act until the expiration of the Effectiveness Period. At the
time the Initial Shelf Registration Statement becomes effective under the Securities Act,
each Holder that became a Notice Holder on or before the fifth Business Day prior to the
date of such effectiveness shall be named as a selling securityholder in the Initial Shelf
Registration Statement and the related Prospectus in a manner that, based on the information
known to the Company at such time of effectiveness (including, without limitation, the
information contained in such Notice Holder’s Notice and Questionnaire),
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will permit such Holder to deliver such Prospectus to purchasers of Registrable
Securities in accordance with applicable law.
(b) If, for any reason, at any time during the Effectiveness Period any Shelf
Registration Statement ceases to be effective under the Securities Act, or ceases to be
usable for the purposes contemplated hereunder, the Company shall use its commercially
reasonable efforts to promptly cause such Shelf Registration Statement to become effective
under the Securities Act (including obtaining the prompt withdrawal of any order suspending
the effectiveness of such Shelf Registration Statement), and in any event shall, within
fifteen (15) days of such cessation of effectiveness, (i) amend such Shelf Registration
Statement in a manner reasonably expected to obtain the withdrawal of any order suspending
the effectiveness of such Shelf Registration Statement or (ii) file an additional
Registration Statement (a “Subsequent Shelf Registration Statement”) for an offering
to be made on a delayed or continuous basis pursuant to Rule 415 registering the resale from
time to time by Holders thereof of all securities that are Registrable Securities as of the
time of such filing (or, if registration of Registrable Securities not held by Notice
Holders is not permitted by the rules and regulations of the SEC, then registering the
resale from time to time by Notice Holders of their securities that are Registrable
Securities as of the time of such filing). If a Subsequent Shelf Registration Statement is
filed, the Company shall use its commercially reasonable efforts to (A) cause such
Subsequent Shelf Registration Statement to become effective under the Securities Act as
promptly as practicable after such filing, but in no event later than the Subsequent Shelf
Registration Statement Effectiveness Deadline Date and (B) keep such Subsequent Shelf
Registration Statement (or another Subsequent Shelf Registration Statement) continuously
effective until the end of the Effectiveness Period. Each such Subsequent Shelf
Registration Statement, if any, shall provide for the registration of such Registrable
Securities for resale by such Holders in accordance with any reasonable method of
distribution elected by the Holders.
(c) The Company shall supplement and amend any Shelf Registration Statement if required
by the rules, regulations or instructions applicable to the registration form used by the
Company for such Shelf Registration Statement, if required by the Securities Act or as
reasonably requested by the Initial Purchaser or by the Trustee on behalf of the Holders of
the Registrable Securities covered by such Shelf Registration Statement.
(d)
(i) Each Holder of Registrable Securities agrees that, if such Holder wishes to
sell Registrable Securities pursuant to a Shelf Registration Statement and related
Prospectus, it will do so only in accordance with this Section 2(d) and Section
3(j). Each Holder of Registrable Securities wishing to sell Registrable Securities
pursuant to a Shelf Registration Statement and related Prospectus agrees to deliver
a completed and executed Notice and Questionnaire to the Company prior to any
attempted or actual distribution of Registrable Securities under a Shelf
Registration Statement. If a Holder becomes a Notice Holder on or
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after the fifth Business Day before the date the Initial Shelf Registration
Statement becomes effective under the Securities Act, the Company shall, as promptly
as practicable after the date such Holder became a Notice Holder, and in any event,
subject to clause (B) below, within the later of (x) ten (10) Business Days after
such date or (y) ten (10) Business Days after the expiration of any Suspension
Period that either (I) is in effect when such Holder became a Notice Holder or (II)
is put into effect within ten (10) Business Days after the date such Holder became a
Notice Holder,
(A) file with the SEC a supplement to the related Prospectus (or, if
required by law, a post-effective amendment to the Shelf Registration
Statement or a Subsequent Shelf Registration Statement), and all other
document(s), in each case as is required so that such Notice Holder is named
as a selling securityholder in a Shelf Registration Statement and the
related Prospectus in such a manner as to permit such Notice Holder to
deliver a Prospectus to purchasers of the Registrable Securities in
accordance with applicable law; provided, however, that, if
a post-effective amendment or a Subsequent Shelf Registration Statement is
required by the rules and regulations of the SEC in order to permit resales
by such Notice Holder, the Company shall not be required to file more than
one (1) post-effective amendment or Subsequent Shelf Registration Statement
for such purpose in any ninety (90) day period;
(B) if, pursuant to Section 2(d)(i)(A), the Company shall have filed a
post-effective amendment to the Shelf Registration Statement or filed a
Subsequent Shelf Registration Statement, the Company shall use its
commercially reasonable efforts to cause such post-effective amendment or
Subsequent Shelf Registration Statement, as the case may be, to become
effective under the Securities Act as promptly as practicable, but in any
event by the date (the “Amendment Effectiveness Deadline Date,” in
the case of a post-effective amendment, and the “Subsequent Shelf
Registration Statement Effectiveness Deadline Date,” in the case of a
Subsequent Shelf Registration Statement) that is thirty (30) days after the
date such post-effective amendment or Subsequent Shelf Registration
Statement, as the case may be, is required by this Section 2(d) to be filed
with the SEC;
(C) the Company shall provide such Notice Holder a reasonable number of
copies of any documents filed pursuant to clause (A) above;
(D) the Company shall notify such Notice Holder as promptly as
practicable after the effectiveness under the Securities Act of any
post-effective amendment or Subsequent Shelf Registration Statement filed
pursuant to clause (A) above;
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(E) if such Holder became a Notice Holder during a Suspension Period,
or a Suspension Period is put into effect within ten (10) Business Days
after the date such Holder became a Notice Holder, the Company shall so
inform such Notice Holder and shall take the actions set forth in clauses
(A), (B), (C) and (D) above within ten (10) Business Days after expiration
of such Suspension Period in accordance with Section 3(j); and
(F) if, under applicable law, the Company has more than one option as
to the type or manner of making any such filing, the Company shall make the
required filing or filings in the manner or of a type that is reasonably
expected to result in the earliest availability of a Prospectus for
effecting resales of Registrable Securities.
(ii) Notwithstanding anything contained herein to the contrary, the Company
shall be under no obligation to name any Holder that is not a Notice Holder as a
selling securityholder in any Shelf Registration Statement or related Prospectus;
provided, however, that any Holder that becomes a Notice Holder
(regardless of when such Holder became a Notice Holder) shall be named as a selling
securityholder in a Shelf Registration Statement or related Prospectus in accordance
with the requirements of this Section 2(d) or Section 2(a), as applicable.
(e) The parties hereto agree that the Holders of Registrable Securities will suffer
damages, and that it would not be feasible to ascertain the extent of such damages with
precision, if:
(i) the Initial Shelf Registration Statement has not been filed with the SEC on
or prior to the date that is one hundred twenty (120) days after the Issue Date;
(ii) the Initial Shelf Registration Statement has not become effective under
the Securities Act on or prior to the Effectiveness Deadline Date;
(iii) during the Effectiveness Period, the Initial Shelf Registration Statement
or any Subsequent Registration Statement is filed with the SEC and becomes effective
under the Securities Act but shall thereafter cease to be effective (without being
succeeded immediately by a new Registration Statement that is filed and immediately
becomes effective under the Securities Act) or usable for the offer and sale of
Registrable Securities in the manner contemplated by this Agreement for a period of
time (including any Suspension Period) which shall exceed forty-five (45) days in
the aggregate in any three (3) month period or ninety (90) days in the aggregate in
any twelve (12) month period; or
(iv) any Registration Statement or amendment thereto, at the time it becomes
effective under the Securities Act, or any Prospectus or supplement to a
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Prospectus relating thereto, at the time it is filed with the SEC or required
to be filed with the SEC or, if later, at the time the Registration Statement to
which such Prospectus relates becomes effective under the Securities Act, shall fail
to name each Notice Holder as a selling securityholder in such a manner as to permit
such Notice Holder to sell its Registrable Securities pursuant to such Registration
Statement and Prospectus in accordance with applicable law, or shall fail to be
filed as required by Section 2(d), which Notice Holder was entitled, pursuant to the
terms of this Agreement, to be so named (it being understood that, without
limitation, naming such Notice Holder in a manner that permits such Notice Holder to
sell only a portion of such Notice Holder’s Registrable Securities referenced in
such Notice Holder’s Notice and Questionnaire shall be deemed to be an “Event” (as
defined below) for purposes of this clause (iv)) with respect to that portion of
Registrable Securities that is not so permitted to be sold.
Each of the events of a type described in any of the foregoing clauses (i) through (iv) are
individually referred to herein as an “Event,” and
(W) the date that is one hundred twenty (120) days after the Issue Date, in the
case of clause (i) above,
(X) the Effectiveness Deadline Date, in the case of clause (ii) above,
(Y) the date on which the duration of the ineffectiveness or unusability of the
Shelf Registration Statement exceeds the number of days permitted by clause (iii)
above, in the case of clause (iii) above, and
(Z) the date the applicable Registration Statement or amendment thereto shall
become effective under the Securities Act, or the date the applicable Prospectus or
Prospectus supplement is filed with the SEC or is required to be filed with the SEC
pursuant to Section 2(d) or, if later, the time the Registration Statement to which
such Prospectus relates becomes effective under the Securities Act, as the case may
be, in the case of clause (iv) above,
are each herein referred to as an “Event Date.” Events shall be deemed to continue
until the following dates with respect to the respective types of Events:
(A) the date the Initial Shelf Registration Statement is filed with the SEC, in
the case of an Event of the type described in clause (i) above;
(B) the date the Initial Shelf Registration Statement becomes effective under
the Securities Act, in the case of an Event of the type described in clause (ii)
above;
(C) the date the Initial Shelf Registration Statement or the Subsequent Shelf
Registration Statement, as the case may be, becomes effective and usable again, or
the date another Subsequent Shelf Registration Statement is filed with
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the SEC pursuant to Section 2(b) and becomes effective, in the case of an Event
of the type described in clause (iii) above; or
(D) the date a supplement to the Prospectus is filed with the SEC, or the date
a post-effective amendment to the Registration Statement becomes effective under the
Securities Act, or the date a Subsequent Shelf Registration Statement becomes
effective under the Securities Act, which supplement, post-effective amendment or
Subsequent Shelf Registration Statement, as the case may be, names as selling
securityholders, in such a manner as to permit them to sell their Registrable
Securities pursuant to the Registration Statement and Prospectus supplement in
accordance with applicable law, all Notice Holders entitled as herein provided to be
so named, in the case of an Event of the type described in clause (iv) above.
Accordingly, commencing on (and including) any Event Date and ending on (but excluding) the
next date on which there are no Events that have occurred and are continuing (an
“Additional Interest Accrual Period”), the Company agrees to pay, as additional
interest (“additional interest”) and not as a penalty, an amount (the
“Additional Interest Amount”) at the rate described below, payable periodically on
each Additional Interest Payment Date to Record Holders of Notes, to the extent of, for each
such Additional Interest Payment Date, the unpaid Additional Interest Amount that has
accrued to (but excluding) such Additional Interest Payment Date (or, if the Additional
Interest Accrual Period shall have ended prior to such Additional Interest Payment Date, the
day immediately after the last day of such Additional Interest Accrual Period);
provided, however, that any unpaid Additional Interest Amount that has
accrued with respect to any Note, or portion thereof, called for Redemption on a Redemption
Date, or purchased by the Company pursuant to a Repurchase at Holder’s Option or Repurchase
Upon Repurchase Event on an Option Purchase Date or Repurchase Date, as the case may be,
that is after the close of business on the Record Date relating to such Additional Interest
Payment Date and before such Additional Interest Payment Date, shall, in each case, be
instead paid, on such Redemption Date, Option Purchase Date or Repurchase Date, as the case
may be, to the Holder who submitted such Note or portion thereof for Redemption, Repurchase
at Holder’s Option or Repurchase Upon Repurchase Event, as the case may be;
provided, further, that if a Holder has converted some or all of its Notes
into Common Stock, such Holder will not be entitled to receive Additional Interest with
respect to such Common Stock and the Company will determine the Additional Interest to be
paid with respect to any such converted Note on a pro rata basis based on the date of such
conversion. In addition, in no event will Additional Interest be payable in connection with
a Default relating to a failure to register the Underlying Common Stock. For the avoidance
of doubt, if the Company fails to register both the Notes and the Underlying Common Stock,
Additional Interest will be payable in connection with the Default relating to the failure
to register the Notes.
The Additional Interest Amount shall accrue at a rate per annum equal to one quarter of one
percent (0.25%) for the ninety (90) day period beginning on, and including, the Event Date
and thereafter at a rate per annum equal to one half of one percent (0.50%) of the
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aggregate principal amount of the Notes of which such Record Holders were holders of record
at the close of business on the applicable Record Date; provided, however,
that:
(I) no Additional Interest Amounts shall accrue as to any Note from and after
the earlier of (x) the date such Note is no longer a Registrable Security, (y) the
date, and to the extent, such Note is converted into shares of Common Stock in
accordance with the Indenture and (z) the expiration of the Effectiveness Period;
(II) only those Holders (or their subsequent transferees) failing to be named
as selling securityholders in the manner prescribed in Section 2(e)(iv) above shall
be entitled to receive any Additional Interest Amounts that have accrued solely with
respect to an Event of the type described in Section 2(e)(iv) above (it being
understood that this clause (II) shall not impair any right of any Holder to receive
Additional Interest Amounts that have accrued with respect to an Event other than an
Event of the type described in Section 2(e)(iv) above); and
(III) if a Note ceases to be outstanding during an Additional Interest Accrual
Period for which an Additional Interest Amount would be payable with respect to such
Note, then the Additional Interest Amount payable hereunder with respect to such
Note shall be prorated on the basis of the number of full days such Note is
outstanding during such Additional Interest Accrual Period.
Except as provided in the final paragraph of this Section 2(e), (i) the rate of accrual of
the Additional Interest Amount with respect to any period shall not exceed the rate provided
for in this Section 2(e) notwithstanding the occurrence of multiple concurrent Events and
(ii) following the cure of all Events requiring the payment by the Company of Additional
Interest Amounts to the Holders pursuant to this Section, the accrual of Additional Interest
Amounts shall cease (without in any way limiting the effect of any subsequent Event
requiring the payment of Additional Interest Amounts by the Company). All installments of
additional interest shall be paid by wire transfer of immediately available funds to the
account specified by the Notice Holder or, if no such account is specified, by mailing a
check to such Notice Holder’s address shown in the register of the registrar for the Notes
or for the Underlying Common Stock, as the case may be.
All of the Company’s obligations set forth in this Section 2(e) that are outstanding with
respect to any Registrable Security at the time such Registrable Security ceases to be a
Registrable Security shall survive until such time as all such obligations with respect to
such security have been satisfied in full (notwithstanding termination of this Agreement
pursuant to Section 10(n)).
The parties hereto agree that the additional interest provided for in this Section 2(e)
constitutes a reasonable estimate of the damages in respect of the Notes that may be
incurred by Holders of the Notes by reason of an Event relating to the Notes, including,
without limitation, the failure of a Shelf Registration Statement to be filed, become
effective under the Securities Act, amended or replaced to include the names of all Notice
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Holders or available for effecting resales of Registrable Securities in accordance with the
provisions hereof. Subject to any rights that may arise pursuant to Section 6 hereof, the
parties hereto also agree that the Company shall have no liability to a Holder of Notes for
monetary damages with respect to an Event relating to such Notes other than the additional
interest provided for in this Section 2(e); provided, however, that nothing
in this paragraph shall impair any rights a holder of Underlying Common Stock may have with
respect to an Event relating to such Underlying Common Stock.
If any Additional Interest Amounts are not paid when due, then, to the extent permitted by
law, such overdue Additional Interest Amounts, if any, shall bear interest, compounded
semi-annually, until paid at the rate of interest payable with respect to overdue amounts on
the Notes pursuant to Section 2.15 of the Indenture.
(f) The Trustee shall be entitled, on behalf of Holders, to seek any available remedy
for the enforcement of this Agreement, including for the payment of any Additional Interest
Amount.
3. Registration Procedures. In connection with the registration obligations of the
Company under Section 2 hereof, the Company shall:
(a) Prepare and file with the SEC a Shelf Registration Statement or Shelf Registration
Statements in the manner provided in this Agreement and use its commercially reasonable
efforts to cause each such Shelf Registration Statement to become effective under the
Securities Act and remain effective under the Securities Act as provided herein;
provided, that, before filing any Shelf Registration Statement or Prospectus or any
amendments or supplements thereto with the SEC, the Company shall furnish to the Initial
Purchaser and counsel for the Holders and for the Initial Purchaser (or, if applicable,
separate counsel for the Holders) copies of all such documents proposed to be filed and
reflect in each such document when so filed with the SEC such comments as the Initial
Purchaser or such counsel reasonably shall propose within three (3) Business Days of the
delivery of such copies to the Initial Purchaser and such counsel. Each Registration
Statement that is or is required by this Agreement to be filed with the SEC shall be filed
on Form S-3 if the Company is then eligible to use Form S-3 for the purposes contemplated by
this Agreement, or, if the Company is not then so eligible to use Form S-3, shall be on Form
S-1 or another appropriate form that is then available to the Company for the purposes
contemplated by this Agreement. Each such Registration Statement that is filed on Form S-3
may, at the option of the Company, be an Automatic Shelf Registration Statement if the
Company is then eligible to file an Automatic Shelf Registration Statement on Form S-3 for
the purposes contemplated by this Agreement. If, at the time any Registration Statement is
filed with the SEC, the Company is eligible, pursuant to Rule 430B(b), to omit, from the
prospectus that is filed as part of such Registration Statement, the identities of selling
securityholders and amounts of securities to be registered on their behalf, then the Company
shall prepare and file such Registration Statement in a manner as to permit such omission
and to allow for the subsequent filing of such information in a prospectus pursuant to Rule
424(b) in the manner contemplated by Rule 430B(d).
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(b) Prepare and file with the SEC such amendments and post-effective amendments to each
Shelf Registration Statement as may be necessary to keep such Shelf Registration Statement
or Subsequent Shelf Registration Statement continuously effective until the expiration of
the Effectiveness Period; cause the related Prospectus to be supplemented by any required
Prospectus supplement and, as so supplemented, to be filed with the SEC pursuant to Rule
424; and comply with the provisions of the Securities Act applicable to it with respect to
the disposition of all securities covered by each Shelf Registration Statement during the
Effectiveness Period in accordance with the intended methods of disposition by the sellers
thereof set forth in such Shelf Registration Statement as so amended or such Prospectus as
so supplemented.
(c) If, at any time during the Effectiveness Period, any Registration Statement shall
cease to comply with the requirements of the Securities Act with respect to eligibility for
the use of the form on which such Registration Statement was filed with the SEC (or if such
Registration Statement constituted an Automatic Shelf Registration Statement at the time it
was filed with the SEC and shall thereafter cease to constitute an Automatic Shelf
Registration Statement, or if the Company shall have received, from the SEC, a notice,
pursuant to Rule 401(g)(2) under the Securities Act, of objection to the use of the form on
which such Registration Statement was filed with the SEC), (i) promptly give notice to the
Notice Holders and counsel for the Holders and for the Initial Purchaser (or, if applicable,
separate counsel for the Holders) and to the Initial Purchaser and (ii) promptly file with
the SEC a new Registration Statement under the Securities Act, or a post-effective amendment
to such Registration Statement, to effect compliance with the Securities Act if so required.
The Company shall use its commercially reasonable efforts to cause any such new
Registration Statement or post-effective amendment to become effective under the Securities
Act as soon as practicable and shall promptly give notice of such effectiveness to the
Notice Holders and counsel for the Holders and for the Initial Purchaser (or, if applicable,
separate counsel for the Holders) and to the Initial Purchaser. Each such new Registration
Statement, if any, shall be deemed, for purposes of this Agreement, to be a Subsequent Shelf
Registration Statement.
(d) As promptly as practicable, give notice to the Notice Holders, the Initial
Purchaser and counsel for the Holders and for the Initial Purchaser (or, if applicable,
separate counsel for the Holders):
(i) when any Prospectus, Prospectus supplement, Shelf Registration Statement or
any post-effective amendment to a Shelf Registration Statement (other than any such
supplement or amendment that does nothing more than name Notice Holders and provide
information with respect thereto) has been filed with the SEC and, with respect to a
Shelf Registration Statement or any post-effective amendment, when the same has
become effective under the Securities Act,
(ii) of any request, following the effectiveness of a Shelf Registration
Statement under the Securities Act, by the SEC or any other governmental authority
for amendments or supplements to such Shelf Registration Statement or
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the related Prospectus or for additional information,
(iii) of the issuance by the SEC or any other governmental authority of any
stop order suspending the effectiveness of any Shelf Registration Statement or the
initiation or threatening of any proceedings for that purpose,
(iv) of the receipt by the Company or its legal counsel of any notification
with respect to the suspension of the qualification or exemption from qualification
of any of the Registrable Securities for sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose,
(v) after the effective date of any Shelf Registration Statement filed with the
SEC pursuant to this Agreement, of the occurrence of (but not the nature of or
details concerning) a Material Event, and
(vi) of the determination by the Company that a post-effective amendment to a
Shelf Registration Statement or a Subsequent Shelf Registration Statement will be
filed with the SEC, which notice may, at the discretion of the Company (or as
required pursuant to Section 3(j)), state that it constitutes a Suspension Notice,
in which event the provisions of Section 3(j) shall apply.
(e) Use its commercially reasonable efforts to (i) prevent the issuance of, and, if
issued, to obtain the withdrawal of, any order suspending the effectiveness of a Shelf
Registration Statement and (ii) obtain the lifting of any suspension of the qualification
(or exemption from qualification) of any of the Registrable Securities for sale in any
jurisdiction in which they have been qualified for sale, in either case at the earliest
possible moment, and provide prompt notice to each Notice Holder and the Initial Purchaser,
and counsel for the Holders and for the Initial Purchaser (or, if applicable, separate
counsel for the Holders), of the withdrawal or lifting of any such order or suspension.
(f) If requested by the Initial Purchaser or any Notice Holder, as promptly as
practicable incorporate in a Prospectus supplement or a post-effective amendment to a Shelf
Registration Statement such information as the Initial Purchaser, such Notice Holder or
counsel for the Holders and for the Initial Purchaser (or, if applicable, separate counsel
for the Holders) shall determine to be required to be included therein by applicable law and
make any required filings of such Prospectus supplement or such post-effective amendment;
provided, however, that the Company shall not be required to take any
actions under this Section 3(f) that, in the written opinion of counsel for the Company, are
not in compliance with applicable law.
(g) As promptly as practicable, furnish to each Notice Holder (upon their written
request therefor), counsel for the Holders and for the Initial Purchaser (or, if applicable,
separate counsel for the Holders) and the Initial Purchaser, without charge, at least one
(1) conformed copy of each Shelf Registration Statement and each amendment thereto,
including financial statements but excluding schedules, all documents
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incorporated or deemed to be incorporated therein by reference and all exhibits (unless
requested in writing to the Company by such Notice Holder, such counsel or the Initial
Purchaser).
(h) During the Effectiveness Period, deliver to each Notice Holder, counsel for the
Holders and for the Initial Purchaser (or, if applicable, separate counsel for the Holders)
and the Initial Purchaser, in connection with any sale of Registrable Securities pursuant to
a Shelf Registration Statement, without charge, as many copies of the Prospectus or
Prospectuses relating to such Registrable Securities (including each preliminary prospectus)
and any amendment or supplement thereto as such Notice Holder or the Initial Purchaser may
reasonably request; and the Company hereby consents (except during such periods that a
Suspension Notice is outstanding and has not been revoked) to the use of such Prospectus and
each amendment or supplement thereto by each Notice Holder, in connection with any offering
and sale of the Registrable Securities covered by such Prospectus or any amendment or
supplement thereto in the manner set forth therein.
(i) Prior to any public offering of the Registrable Securities pursuant to a Shelf
Registration Statement, use its commercially reasonable efforts to register or qualify or
cooperate with the Notice Holders in connection with the registration or qualification (or
exemption from such registration or qualification) of such Registrable Securities for offer
and sale under the securities or Blue Sky laws of such jurisdictions within the United
States as any Notice Holder reasonably requests in writing (which request may be included in
the Notice and Questionnaire); use its commercially reasonable efforts to keep each such
registration or qualification (or exemption therefrom) effective during the Effectiveness
Period in connection with such Notice Holder’s offer and sale of Registrable Securities
pursuant to such registration or qualification (or exemption therefrom) and do any and all
other acts or things reasonably necessary or advisable to enable the disposition in such
jurisdictions of such Registrable Securities in the manner set forth in the relevant Shelf
Registration Statement and the related Prospectus; provided, however, that
the Company will not be required to qualify generally to do business in any jurisdiction
where it is not then so qualified.
(j) Upon: (A) the occurrence or existence of any pending corporate development (a
“Material Event”) that, in the reasonable discretion of the Company, makes it
appropriate to suspend the availability of any Shelf Registration Statement and the related
Prospectus; (B) the issuance by the SEC of a stop order suspending the effectiveness of any
Shelf Registration Statement or the initiation of proceedings with respect to any Shelf
Registration Statement under Section 8(d) or 8(e) of the Securities Act; or (C) the
occurrence of any event or the existence of any fact as a result of which any Shelf
Registration Statement shall contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the statements
therein not misleading, or any Prospectus shall contain any untrue statement of a material
fact or omit to state any material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading,
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(i) in the case of clause (A) or (C) above, subject to the next sentence, as
promptly as practicable, prepare and file, if necessary pursuant to applicable law,
a post-effective amendment to such Shelf Registration Statement or a supplement to
such Prospectus or any document incorporated therein by reference or file any other
required document that would be incorporated by reference into such Shelf
Registration Statement and Prospectus so that such Shelf Registration Statement does
not contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein not
misleading, and so that such Prospectus does not contain any untrue statement of a
material fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made,
not misleading, as thereafter delivered to the purchasers of the Registrable
Securities being sold thereunder, and, in the case of a post-effective amendment to
a Shelf Registration Statement, subject to the next sentence, use its commercially
reasonable efforts to cause it to become effective under the Securities Act as
promptly as practicable, and
(ii) give notice to the Notice Holders and counsel for the Holders and for the
Initial Purchaser (or, if applicable, separate counsel for the Holders) and to the
Initial Purchaser that the availability of the Shelf Registration Statement is
suspended (a “Suspension Notice”) (and, upon receipt of any Suspension
Notice, each Notice Holder agrees not to sell any Registrable Securities pursuant to
such Shelf Registration Statement until such Notice Holder’s receipt of copies of
the supplemented or amended Prospectus provided for in clause (i) above or until
such Notice Holder is advised in writing by the Company that the Prospectus may be
used).
The Company will use its commercially reasonable efforts to ensure that the use of the
Prospectus may be resumed (x) in the case of clause (A) above, as soon as, in the reasonable
discretion of the Company, such suspension is no longer appropriate, (y) in the case of
clause (B) above, as promptly as is practicable, and (z) in the case of clause (C) above, as
soon as, in the reasonable judgment of the Company, the Shelf Registration Statement does
not contain any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein not misleading and
the Prospectus does not contain any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The period during which the
availability of the Shelf Registration Statement and any Prospectus may be suspended (the
“Suspension Period”) without the Company incurring any obligation to pay additional
interest pursuant to Section 2(e) shall not exceed forty-five (45) days in the aggregate in
any three (3) month period or ninety (90) days in the aggregate in any twelve (12) month
period.
(k) Make available for inspection during normal business hours by representatives for
the Notice Holders and any underwriters participating in any
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disposition pursuant to any Shelf Registration Statement and any broker-dealers,
attorneys and accountants retained by such Notice Holders or any such underwriters, all
relevant financial and other records and pertinent corporate documents and properties of the
Company and its subsidiaries, and cause the appropriate officers, directors and employees of
the Company and its subsidiaries to make available for inspection during normal business
hours all relevant information reasonably requested by such representatives for the Notice
Holders, or any such underwriters, broker-dealers, attorneys or accountants in connection
with such disposition, in each case as is customary for similar “due diligence”
examinations; provided, however, that such persons shall, at the Company’s
request, first agree in writing with the Company that any information that is reasonably and
in good faith designated by the Company in writing as confidential at the time of delivery
of such information shall be kept confidential by such persons and shall be used solely for
the purposes of exercising rights under this Agreement, unless (i) disclosure of such
information is required by court or administrative order or is necessary to respond to
inquiries of governmental or regulatory authorities, (ii) disclosure of such information is
required by law (including any disclosure requirements pursuant to federal securities laws
in connection with the filing of any Shelf Registration Statement or the use of any
Prospectus referred to in this Agreement) or necessary to defend or prosecute a claim
brought against or by any such persons (e.g., to establish a “due diligence” defense), (iii)
such information becomes generally available to the public other than as a result of a
disclosure or failure to safeguard by any such person or (iv) such information becomes
available to any such person from a source other than the Company and such source is not
bound by a confidentiality agreement or is not otherwise under a duty of trust to the
Company; provided further, that the foregoing inspection and information
gathering shall, to the greatest extent possible, be coordinated on behalf of all the Notice
Holders and the other parties entitled thereto by the counsel, referred to in Section 5, for
the Holders in connection with Shelf Registration Statements.
(l) Comply with all applicable rules and regulations of the SEC; and make generally
available to its securityholders earnings statements (which need not be audited) satisfying
the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any
similar rule promulgated under the Securities Act), which statements shall cover a period of
twelve (12) months commencing on the first day of the first fiscal quarter of the Company
commencing after the effective date of each Shelf Registration Statement (within the meaning
of Rule 158(c) under the Securities Act), and which statements shall be so made generally
available to the Company’s securityholders as follows: (i) with respect to an earnings
statement which will be contained in one report on Form 10-K (or any other form as may then
be available for such purpose), such earnings statement shall be made so generally available
no later than the due date by which the Company is required, pursuant to the Exchange Act,
to file such report with the SEC; and (ii) with respect to an earnings statement which will
be contained in any combination of reports on Form 10-K or Form 10-Q (or any other form(s)
as may then be available for such purpose), such earnings statement shall be made so
generally available no later than the due date by which the Company is required, pursuant to
the Exchange Act, to file the last of such reports which together constitute such earnings
statement.
-18-
(m) Cooperate with each Notice Holder to facilitate the timely preparation and delivery
of certificates representing Registrable Securities sold pursuant to a Shelf Registration
Statement, which certificates shall not bear any restrictive legends, and cause such
Registrable Securities to be in such denominations as are permitted by the Indenture and
registered in such names as such Notice Holder may request in writing at least five (5)
Business Days prior to any sale of such Registrable Securities.
(n) Provide a CUSIP number for all Registrable Securities covered by a Shelf
Registration Statement not later than the effective date of the Initial Shelf Registration
Statement and provide the Trustee and the transfer agent for the Common Stock with
certificates for the Registrable Securities that are in a form eligible for deposit with The
Depository Trust Company (“DTC”).
(o) Cooperate and assist in any filings required to be made with the National
Association of Securities Dealers, Inc.
(p) Promptly following the filing of the Initial Shelf Registration Statement, and upon
the effectiveness under the Securities Act of the Initial Shelf Registration Statement,
announce the same, in each case by release through a reputable national newswire service.
(q) In connection with an underwritten offering of Registrable Securities, take all
actions and enter into such customary agreements (including, if requested, an underwriting
agreement in customary form) as are necessary, or reasonably requested by the Holders of a
majority of the Registrable Securities being sold, in order to expedite or facilitate
disposition of such Registrable Securities; and in such connection, whether or not an
underwriting agreement is entered into:
(i) the Company shall make such representations and warranties to the Holders
of such Registrable Securities and the underwriters in form, substance and scope as
would be customarily made by the Company to underwriters in similar offerings of
securities;
(ii) the Company shall obtain opinions of counsel of the Company and updates
thereof (which counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to the Managing Underwriters, if any, and to the counsel to
the Holders of the Registrable Securities being sold) addressed to each selling
Holder and the underwriters, if any, covering the matters that would be customarily
covered in opinions requested in sales of securities or underwritten offerings;
(iii) the Company shall obtain “comfort letters” and updates thereof from the
Company’s independent certified public accountants (and, if necessary, any other
independent certified public accountants of any subsidiary of the Company or of any
business acquired by the Company for which financial statements are, or are required
to be, included in any Shelf Registration
-19-
Statement) addressed to the underwriters, if any, and the selling Holders of
Registrable Securities (to the extent consistent with Statement on Auditing
Standards No. 72, AU 634 or such other professional standards of the American
Institute of Certified Public Accountants as may be applicable), such letters to be
in customary form and covering matters of the type that would customarily be covered
in “comfort letters” to underwriters in connection with similar underwritten
offerings;
(iv) the Company shall, if an underwriting agreement is entered into, cause any
such underwriting agreement to contain indemnification provisions and procedures
substantially equivalent to the indemnification provisions and procedures set forth
in Section 6 hereof with respect to the underwriters and all other parties to be
indemnified pursuant to said Section; and
(v) the Company shall deliver such documents and certificates as may be
reasonably requested and as are customarily delivered in similar offerings to the
holders of a majority of the Registrable Securities being sold and to the Managing
Underwriters, if any;
the above to be done at (x) the effectiveness of any Shelf Registration Statement (and each
post-effective amendment thereto) and (y) each closing under any underwriting or similar
agreement as and to the extent required thereunder. In no event shall the Company be
required to conduct more than one underwritten offering of the Registrable Securities.
(r) Cause the Indenture to be qualified under the TIA not later than the effective date
of the Initial Shelf Registration Statement; and, in connection therewith, cooperate with
the Trustee to effect such changes to the Indenture as may be required for the Indenture to
be so qualified in accordance with the terms of the TIA and execute, and use its
commercially reasonable efforts to cause the Trustee to execute, all documents as may be
required to effect such changes, and all other forms and documents required to be filed with
the SEC to enable the Indenture to be so qualified in a timely manner.
(s) Use its reasonable best efforts to cause the Underlying Common Stock to be listed
on The Nasdaq National Market.
4. Holder’s Obligations. Each Holder agrees, by acquisition of the Registrable
Securities, that no Holder of Registrable Securities shall be entitled to sell any of such
Registrable Securities pursuant to a Shelf Registration Statement or to receive a Prospectus
relating thereto, unless such Holder has furnished the Company with a Notice and Questionnaire as
required pursuant to Section 2(d) hereof (including the information required to be included in such
Notice and Questionnaire) and the information set forth in the next sentence. Each Notice Holder
agrees promptly to furnish to the Company all information required to be disclosed in order to make
the information previously furnished to the Company by such Notice Holder not misleading and any
other information regarding such Notice Holder and the distribution of such Registrable Securities
as the Company may from time to time reasonably request. Any sale of
-20-
any Registrable Securities by any Holder shall constitute a representation and warranty by
such Holder that the Holder Information of such Holder furnished in writing by or on behalf of such
Holder to the Company does not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements in such Holder Information, in the light of
the circumstances under which they were made, not misleading.
5. Registration Expenses. The Company shall bear all fees and expenses incurred in
connection with the performance by the Company of its obligations under Section 2 and Section 3 of
this Agreement whether or not any of the Shelf Registration Statements are filed or declared
effective under the Securities Act. Such fees and expenses (“Registration Expenses”) shall
include, without limitation, (i) all registration and filing fees and expenses (including, without
limitation, fees and expenses (x) with respect to filings required to be made with the National
Association of Securities Dealers, Inc. and (y) of compliance with federal securities laws and
state securities or Blue Sky laws (including, without limitation, reasonable fees and disbursements
of counsel for the Holders in connection with Blue Sky qualifications of the Registrable Securities
under the laws of such jurisdictions as the Notice Holders of a majority of the Registrable
Securities being sold pursuant to a Shelf Registration Statement may designate), (ii) all printing
expenses (including, without limitation, expenses of printing certificates for Registrable
Securities in a form eligible for deposit with The Depository Trust Company and printing
Prospectuses), (iii) all duplication and mailing expenses relating to copies of any Shelf
Registration Statement or Prospectus delivered to any Holders hereunder, (iv) all fees and
disbursements of counsel for the Company and the fees and disbursements of one counsel for the
Holders in connection with the Shelf Registration Statement, (v) all fees and disbursements of the
Trustee and its counsel and of the registrar and transfer agent for the Common Stock and (vi)
Securities Act liability insurance obtained by the Company in its sole discretion. In addition, the
Company shall pay the internal expenses of the Company (including, without limitation, all salaries
and expenses of officers and employees performing legal or accounting duties), the expense of any
annual audit or quarterly review, the fees and expenses incurred in connection with the listing by
the Company of the Registrable Securities on any securities exchange or quotation system on which
similar securities of the Company are then listed and the fees and expenses of any person,
including, without limitation, special experts, retained by the Company. If the Company shall,
pursuant to Rule 456(b), defer payment of any registration fees due under the Securities Act with
respect to any Registration Statement, the Company agrees that it shall pay the fees applicable to
such Registration Statement within the time required by Rule 456(b)(1)(i) (without reliance on the
proviso to Rule 456(b)(1)(i)) and in compliance with Rule 456(b) and Rule 457(r).
6. Indemnification, Contribution.
(a) The Company agrees to indemnify, defend and hold harmless the Initial Purchaser,
each Holder, each person (a “Controlling Person”), if any, who controls the Initial
Purchaser or any Holder within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act and the respective officers, directors, partners, employees,
representatives and agents of the Initial Purchaser, the Holders or any Controlling Person
(each, an “Indemnified Party”), from and against any loss, damage, expense,
liability, claim or any actions in respect thereof (including the reasonable cost of
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investigation) which such Indemnified Party may incur or become subject to under the
Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense,
liability, claim or action arises out of or is based upon any untrue statement or alleged
untrue statement of a material fact contained in any Shelf Registration Statement or
Prospectus, including any document incorporated by reference therein, or in any amendment or
supplement thereto or in any preliminary prospectus, or arises out of or is based upon any
omission or alleged omission to state a material fact required to be stated in any Shelf
Registration Statement or in any amendment or supplement thereto or necessary to make the
statements therein not misleading, or arises out of or is based upon any omission or alleged
omission to state a material fact necessary in order to make the statements made in any
Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in
the light of the circumstances under which such statements were made, not misleading, and
the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other
expenses reasonably incurred by them in connection with investigating or defending any such
loss, damage, expense, liability, claim or action in respect thereof; provided,
however, that the Company shall not be required to provide any indemnification
pursuant to this Section 6(a) in any such case insofar as any such loss, damage, expense,
liability, claim or action arises out of or is based upon any untrue statement or omission
or alleged untrue statement or omission of a material fact contained in, or omitted from,
and in conformity with information furnished in writing by or on behalf of the Initial
Purchaser or a Holder to the Company expressly for use in, any Shelf Registration Statement
or any Prospectus; provided further, however, that this indemnity
agreement will be in addition to any liability which the Company may otherwise have to such
Indemnified Party.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold
harmless the Company, its directors, officers, employees and any person who controls the
Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act (each, a “Company Indemnified Party”) from and against any loss, damage,
expense, liability, claim or any actions in respect thereof (including the reasonable cost
of investigation) which such Company Indemnified Party may incur or become subject to under
the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense,
liability, claim or action arises out of or is based upon any untrue statement or alleged
untrue statement of a material fact contained in, and in conformity with information (the
“Holder Information”) furnished in writing by or on behalf of such Holder to the
Company expressly for use in, any Shelf Registration Statement or Prospectus, or arises out
of or is based upon any omission or alleged omission to state a material fact in connection
with such Holder Information, which material fact was not contained in such Holder
Information, and which material fact was either required to be stated in any Shelf
Registration Statement or Prospectus or necessary to make such Holder Information not
misleading; and, subject to the limitation set forth in the immediately preceding clause,
each Holder shall reimburse, as incurred, the Company for any legal or other expenses
reasonably incurred by the Company or any such controlling person in connection with
investigating or defending any loss, damage, expense, liability, claim or action in respect
thereof. This indemnity agreement will be in addition to any liability which such Holder
may otherwise have to the Company or any of
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its controlling persons. In no event shall the liability of any selling Holder of
Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds
received by such Holder upon the sale, pursuant to the Shelf Registration Statement, of the
Registrable Securities giving rise to such indemnification obligation.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against
any person in respect of which indemnity may be sought pursuant to either Section 6(a) or
Section 6(b), such person (the “Indemnified Party”) shall promptly notify the person
against whom such indemnity may be sought (the “Indemnifying Party”) in writing of
the institution of such Proceeding and the Indemnifying Party shall assume the defense of
such Proceeding; provided, however, that the omission to so notify such
Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may
have to such Indemnified Party or otherwise. Such Indemnified Party shall have the right to
employ its own counsel in any such case, but the fees and expenses of such counsel shall be
at the expense of such Indemnified Party unless the employment of such counsel shall have
been authorized in writing by such Indemnifying Party in connection with the defense of such
Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the
defense of such Proceeding within thirty (30) days of the receipt of notice thereof or such
Indemnified Party shall have reasonably concluded upon the written advice of counsel that
there may be one or more defenses available to it that are different from, additional to or
in conflict with those available to such Indemnifying Party (in which case such Indemnifying
Party shall not have the right to direct that portion of the defense of such Proceeding on
behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and
participate in the defense thereof but the fees and expenses of such counsel shall be at the
expense of such Indemnifying Party), in any of which events such reasonable fees and
expenses shall be borne by such Indemnifying Party and paid as incurred (it being
understood, however, that such Indemnifying Party shall not be liable for the expenses of
more than one separate counsel in any one Proceeding or series of related Proceedings
together with reasonably necessary local counsel representing the Indemnified Parties who
are parties to such action). An Indemnifying Party shall not be liable for any settlement
of such Proceeding effected without the written consent of such Indemnifying Party, but if
settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees
to indemnify and hold harmless an Indemnified Party from and against any loss or liability
by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an
Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified
Party for fees and expenses of counsel as contemplated by the second sentence of this
paragraph, then such Indemnifying Party agrees that it shall be liable for any settlement of
any Proceeding effected without its written consent if (i) such settlement is entered into
more than sixty (60) Business Days after receipt by such Indemnifying Party of the aforesaid
request, (ii) such Indemnifying Party shall not have fully reimbursed such Indemnified Party
in accordance with such request prior to the date of such settlement and (iii) such
Indemnified Party shall have given such Indemnifying Party at least thirty (30) days’ prior
notice of its intention to settle. No Indemnifying Party shall, without the prior written
consent of any Indemnified Party, effect any settlement of any pending or threatened
Proceeding in respect of which such Indemnified Party is or could have been a
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party and indemnity could have been sought hereunder by such Indemnified Party, unless
such settlement includes an unconditional release of such Indemnified Party from all
liability on claims that are the subject matter of such Proceeding and does not include an
admission of fault or culpability or a failure to act by or on behalf of such Indemnified
Party.
(d) If the indemnification provided for in this Section 6 is unavailable to an
Indemnified Party under Section 6(a) or Section 6(b), or insufficient to hold such
Indemnified Party harmless, in respect of any losses, damages, expenses, liabilities, claims
or actions referred to therein, then each applicable 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, damages, expenses, liabilities, claims or
actions (i) in such proportion as is appropriate to reflect the relative benefits received
by the Company, on the one hand, and by the Holders or the Initial Purchaser, on the other
hand, from the offering of the Registrable Securities or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also the relative
fault of the Company, on the one hand, and of the Holders or the Initial Purchaser, on the
other hand, in connection with the statements or omissions which resulted in such losses,
damages, expenses, liabilities, claims or actions, as well as any other relevant equitable
considerations. The relative fault of the Company, on the one hand, and of the Holders or
the Initial Purchaser, on the other hand, shall be determined by reference to, among other
things, whether the untrue statement or alleged untrue statement of a material fact or
omission or alleged omission relates to information supplied by the Company or by the
Holders or the Initial Purchaser and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission. The amount
paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims
and actions referred to above shall be deemed to include any reasonable legal or other fees
or expenses reasonably incurred by such party in connection with investigating or defending
any Proceeding.
(e) The Company, the Holders and the Initial Purchaser agree that it would not be just
and equitable if contribution pursuant to this Section 6 were determined by pro rata
allocation or by any other method of allocation which does not take account of the equitable
considerations referred to in Section 6(d) above. Notwithstanding the provisions of this
Section 6, no Holder shall be required to contribute any amount in excess of the amount by
which the total price at which the Registrable Securities giving rise to such contribution
obligation and sold by such Holder were offered to the public exceeds the amount of any
damages which it 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’ respective obligations to contribute pursuant to this
Section 6 are several in proportion to the respective amount of Registrable Securities they
have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided
for in this Section 6 are not exclusive and shall not limit
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any rights or remedies which may otherwise be available to any indemnified party at law
or in equity.
(f) The indemnity and contribution provisions contained in this Section 6 shall remain
operative and in full force and effect regardless of (i) any termination of this Agreement,
(ii) any investigation made by or on behalf of any Holder or the Initial Purchaser or any
person controlling any Holder or the Initial Purchaser, or the Company, or the Company’s
officers or directors or any person controlling the Company and (iii) the sale of any
Registrable Security by any Holder.
7. Information Requirements.
(a) The Company covenants that, if at any time before the end of the Effectiveness
Period it is not subject to the reporting requirements of the Exchange Act, it will
reasonably cooperate with any Holder of Registrable Securities and take such further action
as any Holder of Registrable Securities may reasonably request in writing (including,
without limitation, making such representations as any such Holder may reasonably request),
all to the extent required from time to time to enable such Holder to sell Registrable
Securities without registration under the Securities Act within the limitations of the
exemptions provided by Rule 144, Rule 144A, Regulation S and Regulation D under the
Securities Act and customarily taken in connection with sales pursuant to such exemptions.
Upon the written request of any Notice Holder, the Company shall deliver to such Notice
Holder a written statement as to whether the Company has complied with the reporting
requirements of the Exchange Act, unless such a statement has been included in the Company’s
most recent report filed with the SEC pursuant to Section 13 or Section 15(d) of Exchange
Act. Notwithstanding the foregoing, nothing in this Section 7 shall be deemed to require the
Company to register any of its securities (other than the Common Stock) under any section of
the Exchange Act.
(b) The Company shall file the reports required to be filed by it under the Exchange
Act and shall comply with all other requirements set forth in the instructions to Form S-3
in order to allow the Company to be eligible to file registration statements on Form S-3.
The Company shall use its commercially reasonable efforts to remain eligible, pursuant to
Rule 430B(b), to omit, from the prospectus that is filed as part of a Registration
Statement, the identities of selling securityholders and amounts of securities to be
registered on their behalf.
8. Underwritten Registrations.
(a) If any of the Registrable Securities covered by the Shelf Registration Statement
are to be offered and sold in an underwritten offering, the investment banker or investment
bankers and manager or managers that will administer the offering (“Managing
Underwriters”) shall be selected by the holders of a majority of such Registrable
Securities to be included in such offering and consented to in writing by the Company, such
consent not to be unreasonably withheld.
-25-
(b) No person may participate in any underwritten registration hereunder unless such
person (i) agrees to sell such person’s Registrable Securities on the basis reasonably
provided in any underwriting arrangements approved by the persons entitled hereunder to
approve such arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably required under
the terms of such underwriting arrangements.
9. Applicability of Certain Provisions. Notwithstanding anything herein to the
contrary, so long as the Company is permitted under Rule 430B and other applicable rules and
regulations of the SEC to add the names of selling securityholders or information relating thereto
to the Initial Shelf Registration Statement or any Subsequent Shelf Registration Statement by means
of a Prospectus supplement, nothing in this Agreement shall be construed to require the Company to
add such names or information by other means, including, but not limited to, any post-effective
amendment to such Initial Shelf Registration Statement or any Subsequent Shelf Registration
Statement.
10. Miscellaneous.
(a) Remedies. The Company acknowledges and agrees that any failure by the
Company to comply with its obligations under this Agreement may result in material
irreparable injury to the Initial Purchaser and 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 Purchaser or any Holder may obtain
such relief as may be required to specifically enforce the Company’s obligations under this
Agreement. The Company further agrees to waive the defense in any action for specific
performance that a remedy at law would be adequate. Notwithstanding the foregoing two
sentences, this Section 10(a) shall not apply to the subject matter referred to in and
contemplated by Section 2(e).
(b) No Conflicting Agreements. The Company is not, as of the date hereof, a
party to, nor shall it, on or after the date of this Agreement, enter into, any agreement
with respect to the Company’s securities that conflicts with the rights granted to the
Holders in this Agreement. The Company represents and warrants that the rights granted to
the Holders hereunder do not in any way conflict with the rights granted to the holders of
the Company’s securities under any other agreements. The Company will not take any action
with respect to the Registrable Securities which would adversely affect the ability of any
of the Holders to include such Registrable Securities in a registration undertaken pursuant
to this Agreement. The Company represents and covenants that it has not granted, and shall
not grant, to any of its securityholders (other than the Holders in such capacity) the right
to include any of the Company’s securities in any Shelf Registration Statement filed
pursuant to this Agreement.
(c) Amendments and Waivers. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or supplemented, and waivers or
consents to departures from the provisions hereof may not be given, unless the Company has
obtained the written consent of Holders of a majority of outstanding
-26-
Registrable Securities; provided, however, that, no consent is
necessary from any of the Holders in the event that this Agreement is amended, modified or
supplemented for the purpose of curing any ambiguity, defect or inconsistency that does not
adversely affect the rights of any Holders. Notwithstanding the foregoing, a waiver or
consent to depart from the provisions hereof with respect to a matter that relates
exclusively to the rights of Holders of Registrable Securities whose securities are being
sold pursuant to a Shelf Registration Statement and that does not directly or indirectly
affect the rights of other Holders of Registrable Securities may be given by Holders of at
least a majority of the Registrable Securities being sold by such Holders pursuant to such
Shelf Registration Statement; provided, however, that the provisions of this
sentence may not be amended, modified, or supplemented except in accordance with the
provisions of the immediately preceding sentence. Each Holder of Registrable Securities
outstanding at the time of any such amendment, modification, supplement, waiver or consent
or thereafter shall be bound by any such amendment, modification, supplement, waiver or
consent effected pursuant to this Section 10(c), whether or not any notice, writing or
marking indicating such amendment, modification, supplement, waiver or consent appears on
the Registrable Securities or is delivered to such Holder.
(d) Notices. All notices and other communications provided for or permitted
hereunder shall be made in writing by hand delivery, by telecopier, by courier guaranteeing
overnight delivery or by first-class mail, return receipt requested, and shall be deemed
given (A) when made, if made by hand delivery, (B) upon confirmation, if made by telecopier,
(C) one (1) Business Day after being deposited with such courier, if made by overnight
courier or (D) on the date indicated on the notice of receipt, if made by first-class mail,
to the parties as follows:
(i) if to a Holder, at the most current address given by such Holder to the
Company in a Notice and Questionnaire or any amendment thereto;
(ii) if to the Company, to:
Informatica Corporation
000 Xxxxxxxx Xxx
Xxxxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Chief Financial Officer
Telecopy No.: (000) 000-0000
000 Xxxxxxxx Xxx
Xxxxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Chief Financial Officer
Telecopy No.: (000) 000-0000
(iii) if to the Initial Purchaser, to:
UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Syndicate Department
Telecopy No.: (000) 000-0000
with a copy to (for informational purposes only):
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Syndicate Department
Telecopy No.: (000) 000-0000
with a copy to (for informational purposes only):
-27-
UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Legal Department
Telecopy No.: (000) 000-0000
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Legal Department
Telecopy No.: (000) 000-0000
and
UBS Securities LLC
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Syndicate Department
Telecopy No.: (000) 000-0000
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Syndicate Department
Telecopy No.: (000) 000-0000
or to such other address as such person may have furnished to the other persons identified
in this Section 10(d) in writing in accordance herewith.
(e) Majority of Registrable Securities. For purposes of determining what
constitutes holders of a majority of Registrable Securities, as referred to in this
Agreement, a majority shall constitute a majority in aggregate principal amount of
Registrable Securities, treating each relevant holder of shares of Underlying Common Stock
as a holder of the aggregate principal amount of Notes in respect of which such Common Stock
was issued.
(f) Approval of Holders. Whenever the consent or approval of Holders of a
specified percentage of Registrable Securities is required hereunder, Registrable Securities
held by the Company or its “affiliates” (as such term is defined in Rule 405 under the
Securities Act) (other than the Initial Purchaser or subsequent Holders of Registrable
Securities, if the Initial Purchaser or such subsequent Holders are deemed to be such
affiliates solely by reason of their holdings of such Registrable Securities) shall not be
counted in determining whether such consent or approval was given by the Holders of such
required percentage.
(g) Third Party Beneficiaries. The Holders shall be third party beneficiaries
to the agreements made hereunder between the Company, on the one hand, and the Initial
Purchaser, 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 their rights
or the rights of Holders hereunder. The Trustee shall be entitled to the rights granted to
it pursuant to this Agreement.
(h) Successors and Assigns. Any person who purchases any Covered Security from
the Initial Purchaser or from any Holder shall be deemed, for purposes of this Agreement, to
be an assignee of the Initial Purchaser or such Holder, as the case may be. This Agreement
shall inure to the benefit of and be binding upon the respective successors and assigns of
each of the parties hereto and shall inure to the benefit of and
-28-
be binding upon each Holder of any Covered Security.
(i) Counterparts. This Agreement may be executed in any number of counterparts
and by the parties hereto in separate counterparts, each of which when so executed shall be
deemed to be original and all of which taken together shall constitute one and the same
agreement.
(j) Headings. The headings in this Agreement are for convenience of reference
only and shall not limit or otherwise affect the meaning hereof.
(k) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES THEREOF.
(l) Severability. If any term, provision, covenant or restriction of this
Agreement is held to be invalid, illegal, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated thereby, and the parties
hereto shall use their best efforts to find and employ an alternative means to achieve the
same or substantially the same result as that contemplated by such term, provision, covenant
or restriction, it being intended that all of the rights and privileges of the parties shall
be enforceable to the fullest extent permitted by law.
(m) Entire Agreement. This Agreement is intended by the parties hereto as a
final expression of their agreement and is intended to be a complete and exclusive statement
of the agreement and understanding of the parties hereto in respect of the subject matter
contained herein and the registration rights granted by the Company with respect to the
Registrable Securities. Except as provided in the Purchase Agreement, there are no
restrictions, promises, warranties or undertakings, other than those set forth or referred
to herein, with respect to the registration rights granted by the Company with respect to
the Registrable Securities. This Agreement supersedes all prior agreements and undertakings
among the parties with respect to such registration rights. No party hereto shall have any
rights, duties or obligations other than those specifically set forth in this Agreement.
(n) Termination. This Agreement and the obligations of the parties hereunder
shall terminate upon the end of the Effectiveness Period, except for any liabilities or
obligations under Section 4, Section 5 or Section 6 hereof and the obligations to make
payments of and provide for additional interest under Section 2(e) hereof to the extent such
additional interest accrues prior to the end of the Effectiveness Period and to the extent
any overdue additional interest accrues in accordance with the last paragraph of such
Section 2(e), each of which shall remain in effect in accordance with its terms.
(o) Submission to Jurisdiction. Except as set forth below, no claim,
counterclaim or dispute of any kind or nature whatsoever arising out of or in any way
-29-
relating to this Agreement (“Claim”) may be commenced, prosecuted or continued
in any court other than the courts of the State of New York located in the City and County
of New York or in the United States District Court for the Southern District of New York,
which courts shall have jurisdiction over the adjudication of such matters, and the Company
hereby consents to the jurisdiction of such courts and personal service with respect
thereto. The Company hereby consents to personal jurisdiction, service and venue in any
court in which any Claim arising out of or in any way relating to this Agreement is brought
by any third party against the Initial Purchaser. THE COMPANY HEREBY WAIVES ALL RIGHTS TO
TRIAL BY JURY IN ANY PROCEEDING (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) IN ANY WAY
ARISING OUT OF OR RELATING TO THIS AGREEMENT. The Company agrees that a final judgment in
any such Proceeding brought in any such court shall be conclusive and binding upon the
Company and may be enforced in any other courts in the jurisdiction of which the Company is
or may be subject, by suit upon such judgment.
[The Remainder of This Page Intentionally Left Blank; Signature Page Follows]
-30-
In Witness Whereof, the parties have executed this Agreement as of the date first
written above.
| Very truly yours, | ||||||
| Informatica Corporation | ||||||
| By: | /s/ Xxxx X. Xxx | |||||
| Title: Executive Vice President and Chief Financial Officer | ||||||
[Signature page to the Registration Rights Agreement]
Accepted and agreed to as of the date
first above written:
first above written:
| UBS Securities LLC | ||||
By: |
/s/ Xxxx X. Xxxxxxxxx | |||
| Title: Managing Director | ||||
By: |
/s/ Xxxxx X. Xxxxxx | |||
| Title: Executive Director | ||||
[Signature page to the Registration Rights Agreement]
