EXHIBIT 4.2
REGISTRATION RIGHTS AGREEMENT
BY AND AMONG
LATTICE SEMICONDUCTOR CORPORATION
AS ISSUER,
AND
XXXXXX XXXXXXX & CO. INCORPORATED,
XXXXXXX SACHS & CO.,
BANCBOSTON XXXXXXXXX XXXXXXXX INC.
AND
ABN AMRO INCORPORATED
AS INITIAL PURCHASERS
DATED AS OF NOVEMBER 3, 1999
THIS REGISTRATION RIGHTS AGREEMENT is made and entered into as of
November 3, 1999 by and among Lattice Semiconductor Corporation, a Delaware
corporation (the "COMPANY"), and Xxxxxx Xxxxxxx & Co. Incorporated, Xxxxxxx
Sachs & Co., BancBoston Xxxxxxxxx Xxxxxxxx Inc. and ABN AMRO Incorporated
pursuant to the Purchase Agreement, dated October 28, 1999 (the "PURCHASE
AGREEMENT"), among the Company and the Initial Purchasers. In order to induce
the Initial Purchasers to enter into the Purchase Agreement, the Company has
agreed to provide the registration rights set forth in this Agreement. The
execution of this Agreement is a condition to the closing under the Purchase
Agreement.
The Company agrees with the Initial Purchasers, (i) for their
benefit as Initial Purchasers and (ii) for the benefit of the beneficial
owners (including the Initial Purchasers) from time to time of the Notes (as
defined herein) and the beneficial owners from time to time of the Underlying
Common Stock (as defined herein) issued upon conversion of the Notes (each of
the foregoing a "HOLDER" and together the "HOLDERS"), as follows:
SECTION 1. DEFINITIONS. Capitalized terms used herein without
definition shall have their respective meanings set forth in the Purchase
Agreement. As used in this Agreement, the following terms shall have the
following meanings:
"AFFILIATE" means with respect to any specified person, an
"affiliate," as defined in Rule 144, of such person.
"AMENDMENT EFFECTIVENESS DEADLINE DATE" has the meaning set forth in
Section 2(d) hereof.
"APPLICABLE CONVERSION PRICE" as of any date of determination means
the Conversion Price in effect as of such date of determination or, if no
Notes are then outstanding, the Conversion Price that would be in effect were
Notes then outstanding.
"BUSINESS DAY" means each Monday, Tuesday, Wednesday, Thursday and
Friday that is not a day on which banking institutions in The City of New
York are authorized or obligated by law or executive order to close.
"COMMON STOCK" means the shares of common stock, par value $1.00 per
share, of the Company and any other shares of common stock as may constitute
"Common Stock" for purposes of the Indenture, including the Underlying Common
Stock.
"CONVERSION PRICE" has the meaning assigned such term in the
Indenture.
"DAMAGES ACCRUAL PERIOD" has the meaning set forth in Section 2(e)
hereof.
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"DAMAGES PAYMENT DATE" means each interest payment date under the
Indenture in the case of Notes, and each May 1 and November 1 in the case of
the Underlying Common Stock.
"DEFERRAL NOTICE" has the meaning set forth in Section 3(i) hereof.
"DEFERRAL PERIOD" has the meaning set forth in Section 3(i) hereof.
"EFFECTIVENESS DEADLINE DATE" has the meaning set forth in Section
2(a) hereof.
"EFFECTIVENESS PERIOD" means the period commencing on the date
hereof and ending on the date that all Registrable Securities have ceased to
be Registrable Securities.
"EVENT" has the meaning set forth in Section 2(e) hereof.
"EVENT DATE" has the meaning set forth in Section 2(e) hereof.
"EVENT TERMINATION DATE" has the meaning set forth in Section 2(e)
hereof.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC promulgated thereunder.
"FILING DEADLINE DATE" has the meaning set forth in Section 2(a)
hereof.
"HOLDER" has the meaning set forth in the second paragraph of this
Agreement.
"INDENTURE" means the Indenture, dated as of November 3, 1999,
between the Company and State Street Bank and Trust Company of California,
N.A., as trustee, pursuant to which the Notes are being issued.
"INITIAL PURCHASERS" means Xxxxxx Xxxxxxx & Co. Incorporated,
Xxxxxxx Sachs & Co., BancBoston Xxxxxxxxx Xxxxxxxx Inc. and ABN AMRO
Incorporated.
"INITIAL SHELF REGISTRATION STATEMENT" has the meaning set forth in
Section 2(a) hereof.
"ISSUE DATE" means the first date of original issuance of the Notes.
"LIQUIDATED DAMAGES AMOUNT" has the meaning set forth in Section
2(e) hereof.
"LOSSES" has the meaning set forth in Section 6 hereof.
"MATERIAL EVENT" has the meaning set forth in Section 3(i) hereof.
"NOTES" means the 4 3/4% Convertible Subordinated Notes due 2006 of
the Company to be purchased pursuant to the Purchase Agreement.
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"NOTICE AND QUESTIONNAIRE" means a written notice delivered to the
Company containing substantially the information called for by the Selling
Securityholder Notice and Questionnaire attached as Annex B to the Offering
Memorandum of the Company issued October 28, 1999 relating to the Notes.
"NOTICE HOLDER" means, on any date, any Holder that has delivered a
Notice and Questionnaire to the Company on or prior to such date.
"PURCHASE AGREEMENT" has the meaning set forth in the preamble
hereof.
"PROSPECTUS" means the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an
effective registration statement in reliance upon Rule 430A promulgated under
the Securities Act), as amended or supplemented by any amendment or
prospectus supplement, including post-effective amendments, and all materials
incorporated by reference or explicitly deemed to be incorporated by
reference in such Prospectus.
"RECORD HOLDER" means (i) with respect to any Damages Payment Date
relating to any Notes as to which any such Liquidated Damages Amount has
accrued, the holder of record of such Note on the record date with respect to
the interest payment date under the Indenture on which such Damages Payment
Date shall occur and (ii) with respect to any Damages Payment Date relating
to the Underlying Common Stock as to which any such Liquidated Damages Amount
has accrued, the registered holder of such Underlying Common Stock fifteen
(15) days prior to such Damages Payment Date.
"REGISTRABLE SECURITIES" means the Notes until such Notes have been
converted into or exchanged for the Underlying Common Stock and, at all times
subsequent to any such conversion or exchange 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 until, in the case of any such
security, (A) the earliest of (i) its effective registration under the
Securities Act and resale in accordance with the Registration Statement
covering it, (ii) expiration of the holding period that would be applicable
thereto, under Rule 144(k) or (iii) its sale to the public pursuant to Rule
144 (or any similar provision then in force, but not Rule 144A) under the
Securities Act, and (B) as a result of the event or circumstance described in
any of the foregoing clauses (i) through (iii), the legend with respect to
transfer restrictions required under the Indenture are removed or removable
in accordance with the terms of the Indenture or such legend, as the case may
be.
"REGISTRATION EXPENSES" has the meaning set forth in Section 5
hereof.
"REGISTRATION STATEMENT" means any registration statement of the
Company that covers any of the Registrable Securities pursuant to the
provisions of this Agreement including the Prospectus, amendments and
supplements to such registration statement, including post-effective
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amendments, all exhibits, and all materials incorporated by reference or
explicitly deemed to be incorporated by reference in such registration
statement.
"RESTRICTED SECURITIES" means "Restricted Securities" as defined in
Rule 144.
"RULE 144" means Rule 144 under the Securities Act, as such Rule may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
"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.
"SEC" means the Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and
the rules and regulations promulgated by the SEC thereunder.
"SHELF REGISTRATION STATEMENT" has the meaning set forth in Section
2(a) hereof.
"SPECIAL COUNSEL" means Xxxxx Xxxx & Xxxxxxxx or such other
successor counsel as shall be specified by the Holders of a majority of the
Registrable Securities, but which may, with the written consent of the
Initial Purchasers (which shall not be unreasonably withheld), be another
nationally recognized law firm experienced in securities law matters
designated by the Company, the reasonable fees and expenses of which will be
paid by the Company pursuant to Section 5 hereof.
"SUBSEQUENT SHELF REGISTRATION STATEMENT" has the meaning set forth
in Section 2(b) hereof.
"TIA" means the Trust Indenture Act of 1939, as amended.
"TRUSTEE" means State Street Bank and Trust Company of California,
N.A., the Trustee under the Indenture.
"UNDERLYING COMMON STOCK" means the Common Stock into which the
Notes are convertible or issued upon any such conversion.
SECTION 2. SHELF REGISTRATION. (a) The Company shall use its best
efforts to prepare and file or cause to be prepared and filed with the SEC,
as soon as practicable but in any event by the date (the "FILING DEADLINE
DATE") ninety (90) days after the Issue Date, a Registration Statement for an
offering to be made on a delayed or continuous basis pursuant to Rule 415 of
the Securities Act (a "SHELF REGISTRATION STATEMENT") registering the resale
from time to time by Holders thereof of all of the Registrable Securities
(the "INITIAL SHELF REGISTRATION STATEMENT"). The Initial Shelf Registration
Statement shall be on Form S-3 or another appropriate form permitting
registration of such Registrable Securities for resale by such Holders in
accordance
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with the methods of distribution elected by the Holders and set forth in the
Initial Shelf Registration Statement. The Company shall use its reasonable
efforts to cause the Initial Shelf Registration Statement to be declared
effective under the Securities Act as promptly as is practicable but in any
event by the date (the "EFFECTIVENESS DEADLINE DATE") that is one hundred
eighty (180) days after the Issue Date, and to keep the Initial Shelf
Registration Statement (or any Subsequent Shelf Registration Statement)
continuously effective under the Securities Act until the expiration of the
Effectiveness Period. At the time the Initial Shelf Registration Statement is
declared effective, each Holder that became a Notice Holder on or prior to
the date ten (10) Business Days prior to such time of effectiveness shall be
named as a selling securityholder in the Initial Shelf Registration Statement
and the related Prospectus in such a manner as to permit such Holder to
deliver such Prospectus to purchasers of Registrable Securities in accordance
with applicable law. None of the Company's security holders (other than the
Holders of Registrable Securities) shall have the right to include any of the
Company's securities in the Shelf Registration Statement.
(b) If the Initial Shelf Registration Statement or any Subsequent
Shelf Registration Statement ceases to be effective for any reason at any
time during the Effectiveness Period (other than because all Registrable
Securities registered thereunder shall have been resold pursuant thereto or
shall have otherwise ceased to be Registrable Securities), the Company shall
use its reasonable efforts to obtain the prompt withdrawal of any order
suspending the effectiveness thereof, and in any event shall within thirty
(30) days of such cessation of effectiveness amend the Shelf Registration
Statement in a manner reasonably expected to obtain the withdrawal of the
order suspending the effectiveness thereof, or file an additional Shelf
Registration Statement covering all of the securities that as of the date of
such filing are Registrable Securities (a "SUBSEQUENT SHELF REGISTRATION
STATEMENT"). If a Subsequent Shelf Registration Statement is filed, the
Company shall use its reasonable efforts to cause the Subsequent Shelf
Registration Statement to become effective as promptly as is practicable
after such filing and to keep such Registration Statement (or subsequent
Shelf Registration Statement) continuously effective until the end of the
Effectiveness Period.
(c) The Company shall supplement and amend the Shelf Registration
Statement if required by the rules, regulations or instructions applicable to
the registration form used by the Company for such Shelf Registration
Statement, if required by the Securities Act or as reasonably requested by
the Initial Purchasers or by the Trustee on behalf of the Holders of the
Registrable Securities covered by such Shelf Registration Statement.
(d) Each Holder of Registrable Securities agrees that if such
Holder wishes to sell Registrable Securities pursuant to a Shelf Registration
Statement and related Prospectus, it will do so only in accordance with this
Section 2(d) and Section 3(i). Each Holder of Registrable Securities wishing
to sell Registrable Securities pursuant to a Shelf Registration Statement and
related Prospectus agrees to deliver a Notice and Questionnaire to the
Company at least three (3) Business Days prior to any intended distribution
of Registrable Securities under the Shelf
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Registration Statement. From and after the date the Initial Shelf
Registration Statement is declared effective, the Company shall, as promptly
as practicable after the date a Notice and Questionnaire is delivered, and in
any event upon the later of (x) five (5) Business Days after such date or (y)
five (5) Business Days after the expiration of any Deferral Period in effect
when the Notice and Questionnaire is delivered or put into effect within five
(5) Business Days of such delivery date, (i) if required by applicable law,
file with the SEC a post-effective amendment to the Shelf Registration
Statement or prepare and, if required by applicable law, file a supplement to
the related Prospectus or a supplement or amendment to any document
incorporated therein by reference or file any other required document so that
the Holder delivering such Notice and Questionnaire is named as a selling
securityholder in the Shelf Registration Statement and the related Prospectus
in such a manner as to permit such Holder to deliver such Prospectus to
purchasers of the Registrable Securities in accordance with applicable law
and, if the Company shall file a post-effective amendment to the Shelf
Registration Statement, use its reasonable efforts to cause such
post-effective amendment to be declared effective under the Securities Act as
promptly as is practicable, but in any event by the date (the "AMENDMENT
EFFECTIVENESS DEADLINE DATE") that is forty-five (45) days after the date
such post-effective amendment is required by this clause to be filed; (ii)
provide such Holder copies of any documents filed pursuant to Section
2(d)(i); and (iii) notify such Holder as promptly as practicable after the
effectiveness under the Securities Act of any post-effective amendment filed
pursuant to Section 2(d)(i); PROVIDED, that if such Notice and Questionnaire
is delivered during a Deferral Period, the Company shall so inform the Holder
delivering such Notice and Questionnaire and shall take the actions set forth
in clauses (i), (ii) and (iii) above upon expiration of the Deferral Period
in accordance with Section 3(i). Notwithstanding anything contained herein to
the contrary, (i) the Company shall be under no obligation to name any Holder
that is not a Notice Holder as a selling securityholder in any Registration
Statement or related Prospectus and (ii) the Amendment Effectiveness Deadline
Date shall be extended by up to ten (10) Business Days from the expiration of
a Deferral Period (and the Company shall incur no obligation to pay
Liquidated Damages during such extension) if such Deferral Period shall be in
effect on the Amendment Effectiveness Deadline Date.
(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 on or prior to the Filing Deadline
Date, (ii) the Initial Shelf Registration Statement has not been declared
effective under the Securities Act on or prior to the Effectiveness Deadline
Date, (iii) the Company has failed to perform its obligations set forth in
Section 2(d) within the time period required therein, (iv) the aggregate
duration of Deferral Periods in any period exceeds the number of days
permitted in respect of such period pursuant to Section 3(i) hereof or (v)
the number of Deferral Periods in any period exceeds the number permitted in
respect of such period pursuant to Section 3(i) hereof (each of the events of
a type described in any of the foregoing clauses (i) through (v) are
individually referred to herein as an "EVENT," and the Filing Deadline Date
in the case of clause (i), the Effectiveness Deadline Date in the case of
clause (ii), the date by which the Company is required to perform its
obligations set forth in Section 2(d) in the case of clause (iii) (including
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the filing of any post-effective amendment prior to the Amendment
Effectiveness Deadline Date), the date on which the aggregate duration of
Deferral Periods in any period exceeds the number of days permitted by
Section 3(i) hereof in the case of clause (iv), and the date of the
commencement of a Deferral Period that causes the limit on the number of
Deferral Periods in any period under Section 3(i) hereof to be exceeded in
the case of clause (v), being referred to herein as an "EVENT DATE"). Events
shall be deemed to continue until the "EVENT TERMINATION DATE," which shall
be the following dates with respect to the respective types of Events: the
date the Initial Shelf Registration Statement is filed in the case of an
Event of the type described in clause (i), the date the Initial Shelf
Registration Statement is declared effective under the Securities Act in the
case of an Event of the type described in clause (ii), the date the Company
performs its obligations set forth in Section 2(d) in the case of an Event of
the type described in clause (iii) (including, without limitation, the date
the relevant post-effective amendment to the Shelf Registration Statement is
declared effective under the Securities Act), termination of the Deferral
Period that caused the limit on the aggregate duration of Deferral Periods in
a period set forth in Section 3(i) to be exceeded in the case of the
commencement of an Event of the type described in clause (iv), and
termination of the Deferral Period the commencement of which caused the
number of Deferral Periods in a period permitted by Section 3(i) to be
exceeded in the case of an Event of the type described in clause (v).
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 (a "DAMAGES ACCRUAL PERIOD"), the Company agrees
to pay, as liquidated damages and not as a penalty, an amount (the
"LIQUIDATED DAMAGES AMOUNT"), payable on the Damages Payment Dates to Record
Holders of Notes that are Registrable Securities and of shares of Underlying
Common Stock issued upon conversion of Notes that are Registrable Securities,
as the case may be, accruing, for each portion of such Damages Accrual Period
beginning on and including a Damages Payment Date (or, in respect of the
first time that the Liquidated Damages Amount is to be paid to Holders on a
Damages Payment Date as a result of the occurrence of any particular Event,
from the Event Date) and ending on but excluding the first to occur of (A)
the date of the end of the Damages Accrual Period or (B) the next Damages
Payment Date, at a rate per annum equal to one-half of one percent (0.5 %) of
the aggregate principal amount of such Notes or, in the case of Notes that
have been converted into or exchanged for Underlying Common Stock, the
Applicable Conversion Price of such shares of Underlying Common Stock, as the
case may be, in each case determined as of the Business Day immediately
preceding the next Damages Payment Date; PROVIDED, that in the case of a
Damages Accrual Period that is in effect solely as a result of an Event of
the type described in clause (iii) of the immediately preceding paragraph,
such Liquidated Damages Amount shall be paid only to the Holders that have
delivered Notice and Questionnaires that caused the Company to incur the
obligations set forth in Section 2(d) the non-performance of which is the
basis of such Event, PROVIDED FURTHER, that any Liquidated Damages Amount
accrued with respect to any Note or portion thereof called for redemption on
a redemption date or converted into Underlying Common Stock on a conversion
date prior to the Damages Payment Date, shall, in any such event, be paid
instead to the Holder who submitted such Note or portion thereof for
redemption or conversion on the applicable redemption date or
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conversion date, as the case may be, on such date (or promptly following the
conversion date, in the case of conversion). Notwithstanding the foregoing,
no Liquidated Damages Amounts shall accrue as to any Registrable Security
from and after the earlier of (x) the date such security is no longer a
Registrable Security and (y) expiration of the Effectiveness Period. The rate
of accrual of the Liquidated Damages Amount with respect to any period shall
not exceed the rate provided for in this paragraph notwithstanding the
occurrence of multiple concurrent Events. Following the cure of all Events
requiring the payment by the Company of Liquidated Damages Amounts to the
Holders of Registrable Securities pursuant to this Section, the accrual of
Liquidated Damages Amounts will cease (without in any way limiting the effect
of any subsequent Event requiring the payment of Liquidated Damages Amount by
the Company).
The Trustee shall be entitled, on behalf of Holders of Notes or
Underlying Common Stock, to seek any available remedy for the enforcement of
this Agreement, including for the payment of any Liquidated Damages Amount.
Notwithstanding the foregoing, the parties agree that the sole damages
payable for a violation of the terms of this Agreement with respect to which
liquidated damages are expressly provided shall be such liquidated damages.
Nothing shall preclude a Notice Holder or Holder of Registrable Securities
from pursuing or obtaining specific performance or other equitable relief
with respect to this Agreement.
All of the Company's obligations set forth in this Section 2(e) that
are outstanding with respect to any Registrable Security at the time such
security ceases to be a Registrable Security shall survive until such time as
all such obligations with respect to such security have been satisfied in
full (notwithstanding termination of this Agreement pursuant to Section 8(k)).
The parties hereto agree that the liquidated damages provided for in
this Section 2(e) constitute a reasonable estimate of the damages that may be
incurred by Holders of Registrable Securities by reason of the failure of the
Shelf Registration Statement to be filed or declared effective or available
for effecting resales of Registrable Securities in accordance with the
provisions hereof.
SECTION 3. REGISTRATION PROCEDURES. In connection with the
registration obligations of the Company under Section 2 hereof, the Company
shall:
(a) Prepare and file with the SEC a Registration Statement or
Registration Statements on any appropriate form under the Securities
Act available for the sale of the Registrable Securities by the Holders
thereof in accordance with the intended method or methods of
distribution thereof, and use its reasonable efforts to cause each such
Registration Statement to become effective and remain effective as
provided herein; PROVIDED, that before filing any Registration
Statement or Prospectus or any amendments or supplements thereto with
the SEC, furnish to the Initial Purchasers and the Special Counsel
copies of all such documents proposed to be filed and use its best
efforts to reflect in each such document when so filed with the SEC
such comments as the Special
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Counsel reasonably shall propose within five (5) Business Days of the
delivery of such copies to the Initial Purchasers and the Special
Counsel.
(b) Prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be
necessary to keep such Registration Statement continuously effective
for the applicable period specified in Section 2(a); cause the related
Prospectus to be supplemented by any required Prospectus supplement,
and as so supplemented to be filed pursuant to Rule 424 (or any similar
provisions then in force) under the Securities Act; and use its best
efforts to comply with the provisions of the Securities Act applicable
to it with respect to the disposition of all securities covered by such
Registration Statement during the Effectiveness Period in accordance
with the intended methods of disposition by the sellers thereof set
forth in such Registration Statement as so amended or such Prospectus
as so supplemented.
(c) As promptly as practicable give notice to the Notice Holders,
the Initial Purchasers and the Special Counsel (i) when any Prospectus,
Prospectus supplement, Registration Statement or post-effective
amendment to a Registration Statement has been filed with the SEC and,
with respect to a Registration Statement or any post-effective
amendment, when the same has been declared effective, (ii) of any
request, following the effectiveness of the Initial Shelf Registration
Statement under the Securities Act, by the SEC or any other federal or
state governmental authority for amendments or supplements to any
Registration Statement or related Prospectus or for additional
information, (iii) of the issuance by the SEC or any other federal or
state governmental authority of any stop order suspending the
effectiveness of any Registration Statement or the initiation or
threatening of any proceedings for that purpose, (iv) of the receipt by
the Company of any notification with respect to the suspension of the
qualification or exemption from qualification of any of the Registrable
Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, (v) 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 Registration Statement will be filed with the SEC, which
notice may, at the discretion of the Company (or as required pursuant
to Section 3 (i)), state that it constitutes a Deferral Notice, in
which event the provisions of Section 3(i) shall apply.
(d) Use reasonable efforts to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement or the lifting
of any suspension of the qualification (or exemption from
qualification) of any of the Registrable Securities for sale in any
jurisdiction in which they have been qualified for sale, in either case
at the earliest possible moment, and provide prompt notice to each
Notice Holder and the Initial Purchasers of the withdrawal of any such
order.
(e) If reasonably requested by the Initial Purchasers or any
Notice Holder, as promptly as practicable incorporate in a Prospectus
supplement or post-effective amendment to a Registration Statement such
information as the Initial Purchasers, the Special Counsel or such
Notice Holder shall, on the basis of a written opinion of
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nationally-recognized counsel experienced in such matters, 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.
(f) As promptly as practicable furnish to each Notice Holder, the
Special Counsel and the Initial Purchasers, without charge, at least
one (1) conformed copy of the Registration Statement and any amendment
thereto, including financial statements but excluding schedules, all
documents incorporated or deemed to be incorporated therein by
reference and all exhibits (unless requested in writing to the Company
by such Notice Holder, Special Counsel, counsel or Initial Purchasers).
(g) During the Effectiveness Period, deliver to each Notice
Holder, the Special Counsel and the Initial Purchasers, in connection
with any sale of Registrable Securities pursuant to a Registration
Statement, without charge, as many copies of the Prospectus or
Prospectuses relating to such Registrable Securities (including each
preliminary prospectus) and any amendment or supplement thereto as
such Notice Holder may reasonably request; and the Company hereby
consents (except during such periods that a Deferral Notice is
outstanding and has not been revoked) to the use of such Prospectus
or each amendment or supplement thereto by each Notice Holder, in
connection with any offering and sale of the Registrable Securities
covered by such Prospectus or any amendment or supplement thereto in
the manner set forth therein.
(h) Prior to any public offering of the Registrable Securities
pursuant to the Shelf Registration Statement, 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); prior to any public offering
of the Registrable Securities pursuant to the Shelf Registration
Statement, 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 Registration
Statement and the related Prospectus; PROVIDED, that the Company will
not be required to (i) qualify as a foreign corporation or as a dealer
in securities in any jurisdiction where it would not otherwise be
required to qualify but for this Agreement or (ii) take any action that
would subject it to general service of process in suits or to taxation
in any such jurisdiction where it is not then so subject.
(i) Upon (A) the issuance by the SEC of a stop order suspending
the effectiveness of the Shelf Registration Statement or the
initiation of proceedings with respect to the Shelf Registration
Statement under Section 8(d) or 8(e) of the Securities Act, (B) the
occurrence of any event or the existence of any fact (a "MATERIAL
EVENT") as a result of which any Registration Statement shall contain
any untrue statement of a
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material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading, or any Prospectus shall contain any untrue statement of
a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading, or (C) the occurrence or existence of any pending
corporate development that, in the reasonable discretion of the
Company, makes it appropriate to suspend the availability of the
Shelf Registration Statement and the related Prospectus, (i) in the
case of clause (B) above, subject to the next sentence, as promptly
as practicable prepare and file, if necessary pursuant to applicable
law, a post-effective amendment to such Registration Statement or a
supplement to the related Prospectus or any document incorporated
therein by reference or file any other required document that would
be incorporated by reference into such Registration Statement and
Prospectus so that such Registration Statement does not contain any
untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading, and such Prospectus does not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading, as thereafter delivered to the
purchasers of the Registrable Securities being sold thereunder, and,
in the case of a post-effective amendment to a Registration
Statement, subject to the next sentence, use its reasonable efforts
to cause it to be declared effective as promptly as is practicable,
and (ii) give notice to the Notice Holders and the Special Counsel
that the availability of the Shelf Registration Statement is
suspended (a "DEFERRAL NOTICE") and, upon receipt of any Deferral
Notice, each Notice Holder agrees not to sell any Registrable
Securities pursuant to the Registration Statement until such Notice
Holder's receipt of copies of the supplemented or amended Prospectus
provided for in clause (i) above, or until it is advised in writing
by the Company that the Prospectus may be used, and has received
copies of any additional or supplemental filings that are
incorporated or deemed incorporated by reference in such Prospectus.
The Company will use all reasonable efforts to ensure that the use
of the Prospectus may be resumed (x) in the case of clause (A)
above, as promptly as is practicable, (y) in the case of clause (B)
above, as soon as, in the sole judgment of the Company, public
disclosure of such Material Event would not be prejudicial to or
contrary to the interests of the Company or, if necessary to avoid
unreasonable burden or expense, as soon as practicable thereafter
and (z) in the case of clause (C) above, as soon as, in the
discretion of the Company, such suspension is no longer appropriate.
The Company shall be entitled to exercise its right under this
Section 3(i) to suspend the availability of the Shelf Registration
Statement or any Prospectus, without incurring or accruing any
obligation to pay liquidated damages pursuant to Section 2(e), no
more than one (1) time in any three month period or four (4) times
in any twelve month period, and any such period during which the
availability of the Registration Statement and any Prospectus is
suspended (the "DEFERRAL PERIOD") shall, without incurring any
obligation to pay liquidated damages pursuant to Section 2(e), not
12
exceed 30 days; PROVIDED, that in the case of a Material Event
relating to an acquisition or a probable acquisition or financing,
recapitalization, business combination or other similar transaction,
the Company may, without incurring any obligation to pay liquidated
damages pursuant to Section 2(e), deliver to Notice Holders a second
notice to the effect set forth above, which shall have the effect of
extending the Deferral Period by up to an additional 30 days, or
such shorter period of time as is specified in such second notice,
PROVIDED, that the aggregate duration of any Deferral Periods shall
not, without incurring any obligation to pay liquidated damages
pursuant to Section 2(e), exceed 30 days in any three month period
(or 60 days in any three month period in the event of a Material
Event pursuant to which the Company has delivered a second notice as
required above) or 90 days in any twelve (12) month period.
(j) If requested in writing in connection with a disposition of
Registrable Securities pursuant to a Registration Statement, make
reasonably available for inspection during normal business hours by a
representative for the Notice Holders of such Registrable Securities,
and any broker-dealers, attorneys and accountants retained by such
Notice Holders, all relevant financial and other records 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 reasonably available for
inspection during normal business hours on reasonable notice all
relevant information reasonably requested by such representative for
the Notice Holders, Managing Underwriter, or any such 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 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 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 Registration Statement or the use of any Prospectus referred to in
this Agreement), (iii) such information becomes generally available to
the public other than as a result of a disclosure or failure to
safeguard by any such person or (iv) such information becomes available
to any such person from a source other than the Company and such source
is not bound by a confidentiality agreement, and PROVIDED, 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 and PROVIDED FURTHER, that the Company shall not be required
to disclose any information subject to the attorney-client or attorney
work product privilege if and to the extent such disclosure would
constitute a waiver of such privilege.
(k) Use all reasonable efforts to comply with all applicable
rules and regulations of the SEC and make generally available to its
securityholders earning statements (which
13
need not be audited) satisfying the provisions of Section 11(a)
of the Securities Act and Rule 158 thereunder (or any similar rule
promulgated under the Securities Act) no later than 45 days after the
end of any 3-month period (or 90 days after the end of any 12-month
period if such period is a fiscal year) commencing on the first day of
the first fiscal quarter of the Company commencing after the effective
date of a Registration Statement, which statements shall cover said
periods.
(l) Cooperate with each Notice Holder to facilitate the timely
preparation and delivery of certificates representing Registrable Securities
sold or to be sold pursuant to a 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 two (2)
Business Days prior to any sale of such Registrable Securities.
(m) Provide a CUSIP number for all Registrable Securities covered by
each Registration Statement not later than the effective date of such
Registration Statement and provide the Trustee and the transfer agent for the
Common Stock with printed certificates for the Registrable Securities that are
in a form eligible for deposit with The Depository Trust Company.
(n) Cooperate and assist in any filings required to be made with the
National Association of Securities Dealers, Inc.
(o) Upon (i) the filing of the Initial Registration Statement and
(ii) the effectiveness of the Initial Registration Statement, announce the same,
in each case by release to Reuters Economic Services and Bloomberg Business
News.
SECTION 4. HOLDER'S OBLIGATIONS. Each Holder agrees, by acquisition of
the Registrable Securities, that no Holder of Registrable Securities shall be
entitled to sell any of such Registrable Securities pursuant to a Registration
Statement or to receive a Prospectus relating thereto, unless such Holder has
furnished the Company with a Notice and Questionnaire as required pursuant to
Section 2(d) hereof (including the information required to be included in such
Notice and Questionnaire) and the information set forth in the next sentence.
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 any
Registrable Securities by any Holder shall constitute a representation and
warranty by such Holder that the information relating to such Holder and its
plan of distribution is as set forth in the Prospectus delivered by such Holder
in connection with such disposition, that such Prospectus does not as of the
time of such sale contain any untrue statement of a material fact relating to or
provided by such Holder or its plan of distribution and that such Prospectus
does not as of the time of such sale omit to state any material fact relating to
or provided by such Holder or its plan of distribution necessary to make the
statements in such Prospectus, in the light of the circumstances under which
they were made, not misleading.
14
SECTION 5. REGISTRATION EXPENSES. The Company shall bear all fees and
expenses incurred in connection with the performance by the Company of its
obligations under Sections 2 and 3 of this Agreement whether or not any of the
Registration Statements are declared effective. Such fees and expenses shall
include, without limitation, (i) all registration and filing fees (including,
without limitation, fees and expenses (x) with respect to filings required to be
made with the National Association of Securities Dealers, Inc. and (y) of
compliance with federal and state securities or Blue Sky laws (including,
without limitation, reasonable fees and disbursements of the Special Counsel 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 Registration Statement may
designate), (ii) printing expenses (including, without limitation, expenses of
printing certificates for Registrable Securities in a form eligible for deposit
with The Depository Trust Company, (iii) duplication expenses relating to copies
of any Registration Statement or Prospectus delivered to any Holders hereunder,
(iv) fees and disbursements of counsel for the Company and the Special
Counsel in connection with the Shelf Registration Statement (provided that the
Company shall not be liable for the fees and expenses of more than one separate
firm for all parties participating in any transaction hereunder), (v) reasonable
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, the fees and expenses incurred in
connection with the listing by the Company of the Registrable Securities on any
securities exchange on which similar securities of the Company are then listed
and the fees and expenses of any person, including special experts, retained by
the Company. Notwithstanding the provisions of this Section 5, each seller of
Registrable Securities shall pay selling expenses and all registration expenses
to the extent required by applicable law.
SECTION 6. INDEMNIFICATION.
(a) INDEMNIFICATION BY THE COMPANY. The Company shall indemnify
and hold harmless each Notice Holder and each person, if any, who controls
any Notice Holder (within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act) from and against any losses,
liabilities, claims, damages and expenses (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) (collectively, "LOSSES"), arising out
of or based upon any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement or Prospectus or in any
amendment or supplement thereto or in any preliminary prospectus, or arising
out of or based upon 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, PROVIDED, HOWEVER, that the Company shall
not be liable in any such case to the extent that any such Losses arise out
of or are based upon an untrue statement or alleged untrue statement
contained in or omission or alleged omission from any of such documents in
reliance upon and conformity with any of the
15
information relating to the Holders furnished to the Company in writing by a
Holder expressly for use therein; PROVIDED FURTHER, that the indemnification
contained in this paragraph shall not inure to the benefit of any Holder of
Registrable Securities (or to the benefit of any person controlling such
Holder) on account of any such Losses arising out of or based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
any preliminary prospectus provided in each case the Company has performed
its obligations under Section 3(a) hereof if either (A) (i) such Holder
failed to send or deliver a copy of the Prospectus with or prior to the
delivery of written confirmation of the sale by such Holder to the person
asserting the claim from which such Losses arise and (ii) the Prospectus
would have corrected such untrue statement or alleged untrue statement or
such omission or alleged omission, or (B) (x) such untrue statement or
alleged untrue statement, omission or alleged omission is corrected in an
amendment or supplement to the Prospectus and (y) having previously been
furnished by or on behalf of the Company with copies of the Prospectus as so
amended or supplemented, such Holder thereafter fails to deliver such
Prospectus as so amended or supplemented, with or prior to the delivery of
written confirmation of the sale of a Registrable Security to the person
asserting the claim from which such Losses arise.
(b) INDEMNIFICATION BY HOLDERS OF REGISTRABLE SECURITIES. Each
Holder agrees severally and not jointly to indemnify and hold harmless the
Company and its respective directors and officers, and each person, if any,
who controls the Company (within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act) or any other Holder, from
and against all Losses arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement or Prospectus or in any amendment or supplement thereto or in any
preliminary prospectus, or arising out of or based upon 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, to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with information furnished to the Company by such Holder expressly
for use in such Registration Statement or Prospectus or amendment or
supplement thereto. 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 of the Registrable
Securities pursuant to the Registration Statement giving rise to such
indemnification obligation.
(c) CONDUCT OF INDEMNIFICATION PROCEEDINGS. In case any
proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant to
either of the two preceding paragraphs, such person (the "INDEMNIFIED PARTY")
shall promptly notify the person against whom such indemnity may be sought
(the "INDEMNIFYING PARTY") in writing and the indemnifying party, upon
request of the indemnified party, shall retain counsel reasonably
satisfactory to the indemnified party to represent the indemnified party and
any others the indemnifying party may designate in such proceeding and shall
pay the reasonable fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such indemnified
16
party unless (i) the indemnifying party and the indemnified party shall have
mutually agreed to the retention of such counsel or (ii) the named parties to
any such proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying
party shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the fees and expenses of more than one separate
firm (in addition to any local counsel) for all indemnified parties, and that
all such fees and expenses shall be reimbursed as they are incurred. Such
separate firm shall be designated in writing by, in the case of parties
indemnified pursuant to Section 6(a), the Holders of a majority (with Holders
of Notes deemed to be the Holders, for purposes of determining such majority,
of the number of shares of Underlying Common Stock into which such Notes are
or would be convertible or exchangeable as of the date on which such
designation is made) of the Registrable Securities covered by the
Registration Statement held by Holders that are indemnified parties pursuant
to Section 6(a) and, in the case of parties indemnified pursuant to Section
6(b), the Company. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff,
the indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment. No
indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such proceeding.
(d) CONTRIBUTION. To the extent that the indemnification
provided for in this Section 6 is unavailable to an indemnified party under
Section 6(a) or 6(b) hereof in respect of any Losses or is insufficient to
hold such indemnified party harmless, 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 (i) in such proportion as is appropriate to reflect the relative
benefits received by the indemnifying party or parties on the one hand and
the indemnified party or parties on the other hand 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
indemnifying party or parties on the one hand and of the indemnified party or
parties on the other hand in connection with the statements or omissions that
resulted in such Losses, as well as any other relevant equitable
considerations. Benefits received by the Company shall be deemed to be equal
to the total net proceeds from the initial placement pursuant to the Purchase
Agreement (before deducting expenses) of the Registrable Securities to which
such Losses relate. Benefits received by any Holder shall be deemed to be
equal to the value of receiving Registrable Securities that are registered
under the Securities Act. The relative fault of the Holders on the one hand
and the Company 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
17
alleged omission to state a material fact relates to information supplied by
the Holders or by the Company, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Holders' respective obligations to contribute pursuant to this
paragraph are several in proportion to the respective number of Registrable
Securities they have sold pursuant to a Registration Statement, and not joint.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 6(d) were determined by PRO RATA
allocation or by any other method or allocation that does not take into
account 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 referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding this
Section 6(d), an indemnifying party that is a selling Holder of Registrable
Securities shall not be required to contribute any amount in excess of the
amount by which the total price at which the Registrable Securities sold by
such indemnifying party and distributed to the public were offered to the
public exceeds the amount of any damages that such indemnifying party 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.
(e) The indemnity, contribution and expense reimbursement
obligations of the parties hereunder shall be in addition to any liability
any indemnified party may otherwise have hereunder, under the Purchase
Agreement or otherwise.
(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 any person controlling any Holder, or the Company, or
the Company's officers or directors or any person controlling the Company and
(iii) the sale of any Registrable Securities by any Holder.
SECTION 7. INFORMATION REQUIREMENTS. (a) The Company covenants that, if
at any time before the end of the Effectiveness Period the Company is not
subject to the reporting requirements of the Exchange Act, it will cooperate
with any Holder of Registrable Securities and take such further reasonable
action as any Holder of Registrable Securities may reasonably request in writing
(including, without limitation, making such reasonable 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 limitation of the exemptions provided by
Rule 144 and Rule 144A under the Securities Act and customarily taken in
connection with sales pursuant to such exemptions. Upon the written request of
any Holder of Registrable Securities, the Company shall deliver to such Holder a
written statement as to whether it has complied with such filing requirements,
unless such a statement has been included in the Company's most recent report
filed pursuant to Section 13 or Section 15(d) of Exchange Act. Notwithstanding
the foregoing, nothing in this Section 7 shall be
18
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.
SECTION 8. MISCELLANEOUS.
(a) NO CONFLICTING AGREEMENTS. The Company is not, as of the date
hereof, a party to, nor shall it, on or after the date of this Agreement,
enter into, any agreement with respect to its securities that conflicts with
the rights granted to the Holders of Registrable Securities in this
Agreement. The Company represents and warrants that the rights granted to the
Holders of Registrable Securities hereunder do not in any way conflict with
the rights granted to the holders of the Company's securities under any other
agreements.
(b) AMENDMENTS AND WAIVERS. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions
hereof may not be given, unless the Company has obtained the written consent
of Holders of a majority of the then outstanding Underlying Common Stock
constituting Registrable Securities (with Holders of Notes deemed to be the
Holders, for purposes of this Section, of the number of outstanding shares of
Underlying Common Stock into which such Notes are or would be convertible or
exchangeable as of the date on which such consent is requested).
Notwithstanding the foregoing, a waiver or consent to depart from the
provisions hereof with respect to a matter that relates exclusively to the
rights of Holders of Registrable Securities whose securities are being sold
pursuant to a Registration Statement and that does not directly or indirectly
affect the rights of other Holders of Registrable Securities may be given by
Holders of at least a majority of the Registrable Securities being sold by
such Holders pursuant to such Registration Statement; PROVIDED, that the
provisions of this sentence may not be amended, modified, or supplemented
except in accordance with the provisions of the immediately preceding
sentence. Each Holder of Registrable Securities outstanding at the time of
any such amendment, modification, supplement, waiver or consent or thereafter
shall be bound by any such amendment, modification, supplement, waiver or
consent effected pursuant to this Section 8(b), whether or not any notice,
writing or marking indicating such amendment, modification, supplement,
waiver or consent appears on the Registrable Securities or is delivered to
such Holder.
(c) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, by telecopier, by
courier guaranteeing overnight delivery or by first-class mail, return receipt
requested, and shall be deemed given (i) when made, if made by hand delivery,
(ii) upon confirmation, if made by telecopier, (iii) one (1) Business Day after
being deposited with such courier, if made by overnight courier or (iv) on the
date indicated on the notice of receipt, if made by first-class mail, to the
parties as follows:
(w) if to a Holder of Registrable Securities, at the most
current address
19
given by such Holder to the Company in a Notice and Questionnaire or any
amendment thereto;
(x) if to the Company, to:
Lattice Semiconductor Corporation
0000 X.X. Xxxxx Xx.
Xxxxxxxxx, XX 00000-0000
Attention: General Counsel
Telecopy No.: (000) 000-0000
and
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000-0000
Attention: Xxxx Xxxx, Esq.
Telecopy No.: (000) 000-0000
20
(y) if to the Initial Purchasers, to:
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx
Attention: Equity Capital Markets
Telecopy No.: (000) 000-0000
and
Xxxxx Xxxx & Xxxxxxxx
0000 Xxxxxxxxxx Xxxx
Xxxxxxxx Xxxx, XX 00000
Attention: Bruce Dallas, Esq.
Telecopy No. (000) 000-0000
or to such other address as such person may have furnished to the other persons
identified in this Section 8(c) in writing in accordance herewith.
(d) APPROVAL OF HOLDERS. Whenever the consent or approval of
Holders of a specified percentage of Registrable Securities is required
hereunder, Registrable Securities held by the Company or its affiliates (as
such term is defined in Rule 405 under the Securities Act) (other than the
Initial Purchasers or subsequent Holders of Registrable Securities if such
subsequent Holders are deemed to be such affiliates solely by reason of their
holdings of such Registrable Securities) shall not be counted in determining
whether such consent or approval was given by the Holders of such required
percentage.
(e) SUCCESSORS AND ASSIGNS. Any person who purchases any
Registrable Securities from the Initial Purchasers shall be deemed, for
purposes of this Agreement, to be an assignee of the Initial Purchasers. This
Agreement shall inure to the benefit of and be binding upon the successors
and assigns of each of the parties and shall inure to the benefit of and be
binding upon each Holder of any Registrable Securities.
(f) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be original and all of which taken
together shall constitute one and the same agreement.
(g) HEADINGS. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
(h) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.
21
(i) SEVERABILITY. If any term provision, covenant or restriction
of this Agreement is held to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth
herein shall remain in full force and effect and shall in no way be affected,
impaired or invalidated thereby, and the parties hereto shall use their best
efforts to find and employ an alternative means to achieve the same or
substantially the same result as that contemplated by such term, provision,
covenant or restriction, it being intended that all of the rights and
privileges of the parties shall be enforceable to the fullest extent
permitted by law.
(j) ENTIRE AGREEMENT. This Agreement is intended by the parties 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. In no event will such methods of
distribution take the form of an underwritten offering of the Registrable
Securities without the prior agreement of the Company.
(k) 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, 5 or 6 hereof and the
obligations to make payments of and provide for liquidated damages under
Section 2(e) hereof to the extent such damages accrue prior to the end of the
Effectiveness Period, each of which shall remain in effect in accordance with
its terms.
22
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
LATTICE SEMICONDUCTOR CORPORATION
By: /s/ Cyrus X. Xxxx
---------------------------------------------
Name: Cyrus X. Xxxx
Title: President, Chief Executive Officer and
Chairman of the Board
Confirmed and accepted as of
the date first above written:
XXXXXX XXXXXXX & CO. INCORPORATED
XXXXXXX SACHS & CO.
BANCBOSTON XXXXXXXXX XXXXXXXX INC.
ABN AMRO INCORPORATED
By: Xxxxxx Xxxxxxx & Co. Incorporated
By: /s/ Xxxx Xxx
------------------------------------
Name: Xxxx Xxx
Title: Vice President
