EXECUTION COPY
Up to $150,000,000
Affymetrix, Inc.
5% Convertible Subordinated Notes due 2006
REGISTRATION RIGHTS AGREEMENT
September 22, 1999
Credit Suisse First Boston Corporation,
as Representative of the several Initial
Purchasers referred to herein,
c/o Credit Suisse First Boston Corporation
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Dear Sirs:
Affymetrix, Inc., a Delaware corporation (the "Company"), proposes to
issue and sell to Credit Suisse First Boston Corporation ("CSFBC") and the other
initial purchasers named in Schedule A to the Purchase Agreement (as defined
below) (collectively, the "Initial Purchasers"), upon the terms set forth in a
purchase agreement dated as of September 16, 1999 (the "Purchase Agreement")
between the Company and the Initial Purchasers, $125,000,000 aggregate principal
amount (plus up to an additional $25,000,000 principal amount) of 5% Convertible
Subordinated Notes Due 2006 (the "Notes") of the Company. The Notes will be
convertible into shares of Common Stock, par value $0.01 per share, of the
Company (the "Common Stock") at the conversion price set forth in the Offering
Circular dated September 16, 1999. The Notes will be issued pursuant to an
Indenture, dated as of September 22, 1999 (the "Indenture"), between the Company
and The Bank of New York (the "Trustee"). As an inducement to the Initial
Purchasers to enter into the Purchase Agreement and in satisfaction of a
condition to the Initial Purchasers' obligations thereunder, the Company agrees
with the Initial Purchasers, (i) for the benefit of the Initial Purchasers and
(ii) for the benefit of the holders of the Notes and the Common Stock issuable
upon conversion of the Notes (collectively, the "Securities") from time to time
until such time as such Securities have been sold pursuant to a Shelf
Registration Statement (as defined below) (each of the foregoing a "Holder" and
together the "Holders"), as follows:
1. SHELF REGISTRATION. The Company shall take the following actions:
(a) The Company shall, at its cost, prepare and, as promptly as
practicable (but in no event more than 90 days after so required or requested
pursuant to this Section 1) file with the Securities and Exchange Commission
(the "Commission")
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and thereafter shall use its commercially reasonable best efforts to cause to
be declared effective as soon as practicable a registration statement on Form
S-3 (the "Shelf Registration Statement") covering the offer and sale of the
Transfer Restricted Securities (as defined in Section 5 hereof) by the
Holders thereof from time to time in accordance with the methods of
distribution set forth in the Shelf Registration Statement and Rule 415 under
the Securities Act of 1933, as amended (the "Securities Act") (hereinafter,
the "Shelf Registration"); PROVIDED, HOWEVER, that no Holder (other than the
Initial Purchasers) shall be entitled to have the Securities held by it
covered by such Shelf Registration Statement unless such Holder agrees in
writing to be bound by all the provisions of this Agreement applicable to
such Holder.
(b) The Company shall use its commercially reasonable best efforts to
keep the Shelf Registration Statement continuously effective in order to permit
the prospectus included therein (the "Prospectus") to be lawfully delivered by
the Holders of the relevant Securities, for a period of two years (or for such
longer period if extended pursuant to Section 2(h) below) from the date of its
effectiveness or such shorter period that will terminate when all the Securities
covered by the Shelf Registration Statement (i) have been sold pursuant thereto
or (ii) may be sold pursuant to Rule 144(k) under the Securities Act (or any
successor rule therefore), assuming for this purpose that the Holders thereof
are not affiliates of the Company (in any such case, such period being called
the "Shelf Registration Period"). The Company shall be deemed not to have used
its commercially reasonable best efforts to keep the Shelf Registration
Statement effective during the requisite period if it voluntarily takes any
action that would result in Holders of Securities covered thereby not being able
to offer and sell such Securities during that period, unless such action is
(i) required by applicable law or (ii) taken by the Company in good faith and
for valid business reasons upon the occurrence of any event contemplated by
Section 2(b)(v) below, and the Company thereafter complies with the requirements
of Section 2(h).
(c) Notwithstanding any other provisions of this Agreement to the
contrary, the Company shall cause the Shelf Registration Statement and the
Prospectus and any amendment or supplement thereto, as of the effective date of
the Shelf Registration Statement, amendment or supplement, (i) to comply in all
material respects with the applicable requirements of the Securities Act and the
rules and regulations of the Commission and (ii) not to contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
2. REGISTRATION PROCEDURES. In connection with the Shelf
Registration contemplated by Section 1 hereof, the following provisions shall
apply:
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(a) The Company shall (i) furnish to each of the Initial
Purchasers, prior to the filing thereof with the Commission, a copy of the
Shelf Registration Statement and each amendment thereof and each amendment or
supplement, if any, to the prospectus included therein and, in the event that
an Initial Purchaser (with respect to any portion of an unsold allotment from
the original offering) is participating in the Shelf Registration Statement,
use its commercially reasonable best efforts to reflect in each such
document, when so filed with the Commission, such comments as such Initial
Purchaser reasonably may propose; and (ii) include the names of the Holders
who propose to sell Securities pursuant to the Shelf Registration Statement,
as selling security holders.
(b) The Company shall give written notice to the Initial Purchasers
and the Holders (which notice pursuant to clauses (ii)-(v) hereof shall be
accompanied by an instruction to suspend the use of the prospectus until the
requisite changes have been made):
(i) when the Shelf Registration Statement or any amendment thereto has
been filed with the Commission and when the Shelf Registration Statement or
any post-effective amendment thereto has become effective;
(ii) of any request by the Commission for amendments or supplements to
the Shelf Registration Statement or the prospectus included therein or for
additional information;
(iii) of the issuance by the Commission of any stop order suspending
the effectiveness of the Shelf Registration Statement or the initiation 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 of the
Securities for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose; and
(v) of the happening of any event or circumstance that would require
the Company to make changes in the Shelf Registration Statement or the
Prospectus in order that the Shelf Registration Statement or the Prospectus
does not contain an untrue statement of a material fact nor omit to state a
material fact required to be stated therein or necessary to make the
statements therein (in the case of the Prospectus, in light of the
circumstances under which they were made) not misleading, which written
notice need not provide any detail
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as to the nature of such event.
(c) The Company shall make every reasonable effort to obtain the
withdrawal, at the earliest possible time, of any order suspending the
effectiveness of the Shelf Registration Statement.
(d) The Company shall furnish to each Holder of Securities included
within the coverage of the Shelf Registration, without charge, at least one copy
of the Shelf Registration Statement and any post-effective amendment thereto,
including financial statements and schedules, and, if the Holder so requests in
writing, all exhibits thereto (including those, if any, incorporated by
reference).
(e) The Company shall, during the Shelf Registration Period, deliver
to each Holder of Securities included within the coverage of the Shelf
Registration Statement, without charge, as many copies of the Prospectus
(including each preliminary prospectus) included in the Shelf Registration
Statement and any amendment or supplement thereto as such person may reasonably
request. The Company consents, subject to the provisions of this Agreement, to
the use of the Prospectus or any amendment or supplement thereto by each of the
selling Holders in connection with the offering and sale of the Securities
covered by the Prospectus, or any amendment or supplement thereto, included in
the Shelf Registration Statement.
(f) Prior to any public offering of the Securities pursuant to the
Shelf Registration Statement, the Company shall register or qualify or cooperate
with the Holders of the Securities included therein and their respective counsel
in connection with the registration or qualification of such Securities for
offer and sale under the securities or "blue sky" laws of such states of the
United States as any such Holder reasonably requests in writing and do any and
all other acts or things necessary or advisable to enable the offer and sale in
such jurisdictions of the Securities covered by the Shelf Registration
Statement; PROVIDED, HOWEVER, that the Company shall not be required to (i)
qualify generally to do business in any jurisdiction where it is not then so
qualified or (ii) take any action which would subject it to general service of
process or to taxation in any jurisdiction where it is not then so subject.
(g) The Company shall cooperate with the Holders of the Securities to
facilitate the timely preparation and delivery of certificates representing the
Securities to be sold pursuant to the Shelf Registration Statement free of any
restrictive legends and in such denominations and registered in such names as
the Holders may request a reasonable period of time prior to sales of the
Securities pursuant to the Shelf
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Registration Statement.
(h) Upon the occurrence of any event contemplated by paragraphs
(ii) through (v) of Section 2(b) above during the period for which the Company
is required to maintain an effective Shelf Registration Statement, the Company
shall, as required hereby, prepare and file a post-effective amendment to the
Shelf Registration Statement or an amendment or supplement to the Prospectus and
any other required document so that, as thereafter delivered to Holders or
purchasers of Securities, the Prospectus will not contain an untrue statement of
a material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. If the Company notifies the Initial
Purchasers and the Holders in accordance with paragraphs (ii) through (v) of
Section 2(b) above to suspend the use of the Prospectus until the requisite
changes to the Prospectus have been made, then the Initial Purchasers and the
Holders shall suspend use of such prospectus and the period of effectiveness of
the Shelf Registration Statement provided for in Section 1(b) above shall be
extended by the number of days from and including the date of giving such notice
to and including the date when the Initial Purchasers and the Holders shall have
received such amended or supplemented prospectus pursuant to this Section 2(h).
Any such amendment, supplement or document will be prepared and filed as
promptly as practicable under the circumstances, as determined in good faith by
the Company, it being understood that the Company may have bona fide reasons to
delay such preparation and filing for a period which may not in any event exceed
60 days.
(i) Not later than the effective date of the Shelf Registration
Statement, the Company will provide CUSIP numbers for the Notes and the Common
Stock registered under the Shelf Registration Statement, and provide the Trustee
with printed certificates for such Notes, in a form eligible for deposit with
The Depository Trust Company.
(j) The Company will comply with all rules and regulations of the
Commission to the extent and so long as they are applicable to the Shelf
Registration and will make generally available to its security holders (or
otherwise provide in accordance with Section 11(a) of the Securities Act) an
earnings statement satisfying the provisions of Section 11(a) of the Securities
Act, no later than 45 days after the end of a 12-month period (or 90 days, if
such period is a fiscal year) beginning with the first month of the Company's
first fiscal quarter commencing after the effective date of the Shelf
Registration Statement, which statement shall cover such 12-month period.
(k) The Company shall cause the Indenture to be qualified under the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), in a timely
manner and containing such changes, if any, as shall be necessary for such
qualification. In the
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event that such qualification would require the appointment of a new trustee
under the Indenture, the Company shall appoint a new trustee thereunder
pursuant to the applicable provisions of the Indenture.
(l) The Company may require each Holder of Securities to be sold
pursuant to the Shelf Registration Statement to furnish to the Company such
information regarding the Holder and the distribution of the Securities as the
Company may from time to time reasonably require for inclusion in the Shelf
Registration Statement, and the Company may exclude from such registration the
Securities of any Holder that fails to furnish such information within a
reasonable time after receiving such request.
(m) The Company shall enter into such customary agreements
(including, if requested, an underwriting agreement in customary form) and take
all other actions, if any, as any Holder shall reasonably request in order to
facilitate the disposition of the Securities pursuant to the Shelf Registration,
PROVIDED, HOWEVER, that the Company shall not be required to facilitate an
underwritten offering pursuant to the Shelf Registration Statement by any
Holders unless the offering relates to at least $50,000,000 principal amount of
the Notes or the equivalent number of shares of Common Stock into which such
Notes are convertible.
(n) The Company shall (i) make reasonably available for inspection by
the Holders, any underwriter participating in any distribution pursuant to the
Shelf Registration Statement and any attorney, accountant or other agent
retained by the Holders or any such underwriter, all relevant financial and
other records, pertinent corporate documents and properties of the Company and
(ii) cause the Company's officers, directors, employees, accountants and
auditors to supply all relevant information reasonably requested by the Holders
or any such underwriter, attorney, accountant or agent in connection with the
Shelf Registration Statement, in each case, as shall be reasonably necessary to
enable such persons to conduct a reasonable investigation within the meaning of
Section 11 of the Securities Act; PROVIDED, HOWEVER, that the foregoing
inspection and information gathering (i) shall be coordinated on behalf of the
Initial Purchasers by you and on behalf of the other parties, by one counsel
designated by and on behalf of the other parties as described in Section 3
hereof.
(o) The Company, if requested by any Holder of Securities covered by
Shelf Registration Statement, shall cause (i) its counsel (which may include the
Company's general counsel for one or more of the opinions) to deliver an opinion
and updates thereof relating to the Securities in customary form addressed to
such Holders and the managing underwriters, if any, thereof, and dated, in the
case of the initial opinion, the effective date of the Shelf Registration
Statement (it being agreed that the
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matters to be covered by such opinion shall include, without limitation, (A)
the due incorporation and good standing of the Company; (B) the qualification
of the Company to transact business as a foreign corporation; the due
authorization, execution and delivery of the relevant agreement of the type
referred to in Section 2(m) hereof; (C) the due authorization, execution,
authentication and issuance, and the validity and enforceability, of the
Securities; (D) the absence of material legal or governmental proceedings
involving the Company; (E) the absence of governmental approvals required to
be obtained in connection with the Shelf Registration Statement, the offering
and sale of the Securities, or any agreement of the type referred to in
Section 2(m) hereof; (F) the compliance as to form of the Shelf Registration
Statement and any documents incorporated by reference therein and of the
Indenture with the requirements of the Securities Act and the Trust Indenture
Act, respectively; and, (G) as of the date of the opinion and as of the
effective date of the Shelf Registration Statement or most recent
post-effective amendment thereto, as the case may be, the absence from the
Shelf Registration Statement and the prospectus included therein, as then
amended or supplemented, and from any documents incorporated by reference
therein of an untrue statement of a material fact or the omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading (in the case of any such documents, in
the light of the circumstances existing at the time that such documents were
filed with the Commission under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), it being understood that the items contained in
this clause (G) may be in the form of a statement), (ii) its officers to
execute and deliver all customary documents and certificates and updates
thereof requested by any underwriters of the Securities or counsel for the
Holders and (iii) its independent public accountants and the independent
public accountants with respect to any other entity for which financial
information is provided in the Shelf Registration Statement to provide to the
selling Holders of the Securities and any underwriter therefor a comfort
letter in customary form and covering matters of the type customarily covered
in comfort letters in connection with primary underwritten offerings, subject
to receipt of appropriate documentation as contemplated, and only if
permitted, by Statement of Auditing Standards No. 72.
(p) The Company shall use its best efforts to take all other steps
necessary to effect the registration of the Securities covered by the Shelf
Registration Statement.
3. REGISTRATION EXPENSES. The Company shall bear all fees and
expenses incurred in connection with the performance of its obligations under
Sections
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1 and 2 hereof (including the reasonable fees and expenses, if any, of
counsel for the Initial Purchasers, incurred in connection with the Shelf
Registration), whether or not the Shelf Registration Statement is filed or
becomes effective, and shall bear or reimburse the Holders of the Securities
covered by the Shelf Registration for the reasonable fees and disbursements of
one firm of counsel designated by the Holders of a majority in principal amount
of the Securities covered by the Shelf Registration Statement (provided that
Holders of Common Stock issued upon the conversion of the Notes shall be deemed
to be Holders of the aggregate principal amount of Notes from which such Common
Stock was converted) to act as counsel for the Holders in connection therewith.
4. INDEMNIFICATION. (a) The Company agrees to indemnify and hold
harmless each Holder and each person, if any, who controls such Holder within
the meaning of the Securities Act or the Exchange Act (each Holder and such
controlling persons are referred to collectively as the "Indemnified Parties")
from and against any losses, claims, damages or liabilities, joint or several,
or any actions in respect thereof (including, but not limited to, any losses,
claims, damages, liabilities or actions relating to purchases and sales of the
Securities) to which each Indemnified Party becomes subject under the Securities
Act, the Exchange Act or otherwise, insofar as such losses, claims, damages,
liabilities or actions arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the Shelf Registration
Statement or Prospectus, including any document incorporated by reference
therein, or in any amendment or supplement thereto or in any preliminary
prospectus relating to the Shelf Registration, or arise out of, or are based
upon, the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and 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, claim, damage, liability or action in respect thereof;
PROVIDED, HOWEVER, that (i) the Company shall not be liable in any such case to
the extent that such loss, claim, damage or liability arises out of or is based
upon any untrue statement or alleged untrue statement or omission or alleged
omission made in the Shelf Registration Statement or Prospectus or in any
amendment or supplement thereto or in any preliminary prospectus relating to the
Shelf Registration in reliance upon and in conformity with written information
pertaining to such Holder and furnished to the Company by or on behalf of such
Holder specifically for inclusion therein and (ii) with respect to any untrue
statement or omission or alleged untrue statement or omission made in any
preliminary prospectus relating to the Shelf Registration Statement, the
indemnity agreement contained in this subsection (a) shall not inure to the
benefit of any Holder from whom the person asserting any such losses, claims,
damages or liabilities purchased the Securities concerned, to the extent that a
prospectus relating to
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such Securities was required to be delivered by such Holder under the
Securities Act in connection with such purchase and any such loss, claim,
damage or liability of such Holder results from the fact that there was not
sent or given to such person, at or prior to the written confirmation of the
sale of such Securities to such person, a copy of the final prospectus if the
Company had previously furnished copies thereof to such Holder; PROVIDED
FURTHER, HOWEVER, that this indemnity agreement will be in addition to any
liability which the Company may otherwise have to such Indemnified Party.
The Company shall also indemnify the underwriters, their officers and
directors and each person who controls such underwriters within the meaning of
the Securities Act or the Exchange Act to the same extent as provided above with
respect to the indemnification of the Holders if requested by such Holders.
(b) Each Holder, severally and not jointly, will indemnify and hold
harmless the Company, its officers and directors and each person, if any, who
controls the Company within the meaning of the Securities Act or the Exchange
Act from and against any losses, claims, damages or liabilities or any actions
in respect thereof, to which the Company or any such controlling person may
become subject under the Securities Act, the Exchange Act or otherwise, insofar
as such losses, claims, damages, liabilities or actions arise out of or are
based upon any untrue statement or alleged untrue statement of a material fact
contained in a Shelf Registration Statement or prospectus or in any amendment or
supplement thereto or in any preliminary prospectus relating to a Shelf
Registration, or arise out of or are based upon the omission or alleged omission
to state therein a material fact necessary to make the statements therein not
misleading, but in each case only to the extent that the untrue statement or
omission or alleged untrue statement or omission was made in reliance upon and
in conformity with written information pertaining to such Holder and furnished
to the Company by or on behalf of such Holder specifically for inclusion
therein; and, subject to the limitation set forth immediately preceding this
clause, 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, claim, damage, liability 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 its
controlling persons.
(c) Promptly after receipt by an indemnified party under this
Section 4 of notice of the commencement of any action or proceeding (including a
governmental investigation), such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this Section 4,
notify the indemnifying party of the
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commencement thereof; but the omission so to notify the indemnifying party
will not, in any event, relieve the indemnifying party from any obligations
to any indemnified party other than the indemnification obligation provided
in subsections (a) or (b) above. In case any such action is brought against
any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof the
indemnifying party will not be liable to such indemnified party under this
Section 4 for any legal or other expenses, other than reasonable costs of
investigation, subsequently incurred by such indemnified party in connection
with the defense thereof. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any
pending or threatened action in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by
such indemnified party unless such settlement includes an unconditional
release of such indemnified party from all liability on any claims that are
the subject matter of such action.
(d) If the indemnification provided for in this Section 4 is
unavailable or insufficient to hold harmless an indemnified party under
subsections (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to in
subsections (a) or (b) above (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 on the other from the registration of the
Securities, pursuant to the Shelf Registration, or (ii) if the allocation
provided by the foregoing clause (i) 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 the indemnified party on the other in connection
with the statements or omissions that resulted in such losses, claims, damages
or liabilities (or actions in respect thereof) as well as any other relevant
equitable considerations. The relative fault of the parties shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company on the one hand or
such Holder or such other indemnified party, as the case may be, on the other,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The amount paid
by an indemnified party as a result of the losses, claims, damages or
liabilities referred to in the first sentence of this subsection (d) shall be
deemed to include any legal or other expenses reasonably
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incurred by such indemnified party in connection with investigating or
defending any action or claim which is the subject of this subsection (d).
Notwithstanding any other provision of this Section 4(d), the Holders shall
not be required to contribute any amount in excess of the amount by which the
net proceeds received by such Holders from the sale of the Securities
pursuant to the Shelf Registration Statement exceeds the amount of damages
which such Holders have otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. 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. For purposes
of this paragraph (d), each person, if any, who controls such indemnified
party within the meaning of the Securities Act or the Exchange Act shall have
the same rights to contribution as such indemnified party and each person, if
any, who controls the Company within the meaning of the Securities Act or the
Exchange Act shall have the same rights to contribution as the Company.
(e) The agreements contained in this Section 4 shall survive the sale
of the Securities pursuant to the Shelf Registration Statement and shall remain
in full force and effect, regardless of any termination or cancellation of this
Agreement or any investigation made by or on behalf of any indemnified party.
5. ADDITIONAL INTEREST UNDER CERTAIN CIRCUMSTANCES. (a) Additional
interest (the "Additional Interest") with respect to the Notes shall be assessed
as follows if any of the following events occur (each such event in clauses (i)
through (iii) below being herein called a "Registration Default"):
(i) the Shelf Registration Statement has not been filed with the
Commission by the 90th day after the first date of original issuance of the
Notes;
(ii) the Shelf Registration Statement has not been declared effective
by the Commission by the 150th day after the first date of original
issuance of the Notes; or
(iii) the Shelf Registration Statement is declared effective but
(A) the Shelf Registration Statement thereafter ceases to be effective; or
(B) the Shelf Registration Statement or the Prospectus ceases to be usable
in connection with resales of Transfer Restricted Securities (as defined
below) during the periods specified herein because either (1) any event
occurs as a result of which the Prospectus forming part of such Shelf
Registration Statement would include any untrue statement of a material
fact or omit to state any material fact necessary to
12
make the statements therein in the light of the circumstances under which
they were made not misleading, or (2) it shall be necessary to amend such
Shelf Registration Statement or supplement the related prospectus, to
comply with the Securities Act or the Exchange Act or the respective rules
thereunder.
Additional Interest shall accrue on the Notes over and above the
interest set forth in the title of the Notes from and including the date on
which any such Registration Default shall occur, to but excluding the date on
which all such Registration Defaults have been cured, at a rate of 0.50% per
annum.
(b) A Registration Default referred to in Section 5(a)(iii)(B) shall
be deemed not to have occurred and be continuing in relation to the Shelf
Registration Statement or the Prospectus if (i) such Registration Default has
occurred solely as a result of (x) the filing of a post-effective amendment to
the Shelf Registration Statement to incorporate annual audited financial
information with respect to the Company where such post-effective amendment is
not yet effective and needs to be declared effective to permit Holders to use
the related prospectus or (y) other material events, with respect to the Company
that would need to be described in the Shelf Registration Statement or the
related prospectus and (ii) in the case of clause (y), the Company is proceeding
in good faith to amend or supplement the Shelf Registration Statement and
related prospectus to describe such events as required by paragraph 2(h) hereof;
PROVIDED, HOWEVER, that in any case if such Registration Default occurs for a
continuous period in excess of 90 days, Additional Interest shall be payable in
accordance with the above paragraph from the day such Registration Default
occurs until such Registration Default is cured.
(c) Any amounts of Additional Interest due pursuant to Section 5(a)
will be payable in cash on the regular interest payment dates with respect to
the Notes. The amount of Additional Interest will be determined by multiplying
the applicable Additional Interest rate by the principal amount of the Notes,
further multiplied by a fraction, the numerator of which is the number of days
such Additional Interest rate was applicable during such period (determined on
the basis of a 360-day year comprised of twelve 30-day months), and the
denominator of which is 360. The indebtedness represented by the Additional
Interest shall be subordinated in right of payment to all existing and future
Senior Indebtedness (as defined in the Indenture) as and to the same extent as
the Notes.
(d) "Transfer Restricted Securities" means each Security until (i)
the date on which such Security has been effectively registered under the
Securities Act and disposed of in accordance with the Shelf Registration
Statement or (ii) the date on which such Security is distributed to the public
pursuant to Rule 144 under the Securities Act or is saleable pursuant to Rule
144(k) under the Securities Act.
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6. RULES 144 AND 144A. The Company shall use its best efforts to
file the reports required to be filed by it under the Securities Act and the
Exchange Act in a timely manner and, if at any time the Company is not required
to file such reports, it will, upon the request of any Holder, make publicly
available other information so long as necessary to permit sales of their
securities pursuant to Rules 144 and 144A. The Company covenants that it will
take such further action as any Holder may reasonably request, all to the extent
required from time to time to enable such Holder to sell Transfer Restricted
Securities without registration under the Securities Act within the limitations
of the exemptions provided by Rules 144 and 144A (including the requirements of
Rule 144A(d)(4)). The Company will provide a copy of this Agreement to
prospective purchasers of Securities identified to the Company by the Initial
Purchaser upon request. Upon the request of any Holder, the Company shall
deliver to such Holder a written statement as to whether it has complied with
such requirements. Notwithstanding the foregoing, nothing in this Section 6
shall be deemed to require the Company to register any of its securities
pursuant to the Exchange Act.
7. UNDERWRITTEN REGISTRATIONS. If any of the Transfer Restricted
Securities covered by the Shelf Registration are to be sold in an underwritten
offering, the investment banker or investment bankers and manager or managers
that will administer the offering ("Managing Underwriters") will be selected by
the Company.
No person may participate in any underwritten registration hereunder
unless such person (i) agrees to sell such person's Transfer Restricted
Securities on the basis reasonably provided in any underwriting arrangements
approved by the persons entitled hereunder to approve such arrangements and (ii)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the terms
of such underwriting arrangements.
8. MISCELLANEOUS. (a) AMENDMENTS AND WAIVERS. The provisions of
this Agreement may not be amended, modified or supplemented, and waivers or
consents to departures from the provisions hereof may not be given, except by
the Company and the written consent of the Holders of a majority in principal
amount of the Securities (provided that Holders of Common Stock issued upon
conversion of Notes shall not be deemed Holders of Common Stock, but shall be
deemed to be Holders of the aggregate principal amount of Notes from which such
Common Stock was converted) affected by such amendment, modification,
supplement, waiver or consents.
14
(b) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, first-class mail,
facsimile transmission, or air courier which guarantees overnight delivery:
(1) if to a Holder, at the most current address given by such Holder
to the Company;
(2) if to the Initial Purchasers:
Credit Suisse First Boston Corporation
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Fax No.: (000) 000-0000
Attention: Transactions Advisory Group
15
with a copy to:
Cravath, Swaine & Xxxxx
Worldwide Plaza
000 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax No.: (000) 000-0000
Attention: Xxxx Xxxxxxxxxx, Esq.
(3) if to the Company, at its address as follows:
Affymetrix, Inc.
0000 Xxxxxxx Xxxxxxxxxx
Xxxxx Xxxxx, XX 00000
Fax No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
with a copy to:
Xxxxxxxx & Xxxxxxxx
0000 Xxxxxxx Xxxx xxxx
Xxx Xxxxxx, XX 00000-0000
Fax No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; three business
days after being deposited in the mail, postage prepaid, if mailed; when receipt
is acknowledged by recipient's facsimile machine operator, if sent by facsimile
transmission; and on the day delivered, if sent by overnight air courier
guaranteeing next day delivery.
(c) NO INCONSISTENT AGREEMENTS. The Company has not, as of the date
hereof, entered into, nor shall it, on or after the date hereof, without the
prior consent of CSFBC, enter into, any agreement with respect to its securities
that is inconsistent with the rights granted to the Holders herein or otherwise
conflicts with the provisions hereof.
(d) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
Company and its successors and assigns.
16
(e) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(f) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAWS.
By the execution and delivery of this Agreement, the Company submits
to the nonexclusive jurisdiction of any federal or state court in the State of
New York.
(h) SEVERABILITY. If any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid, illegal
or unenforceable, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions contained
herein shall not be affected or impaired thereby.
(i) SECURITIES HELD BY THE COMPANY. Whenever the consent or approval
of Holders of a specified percentage of principal amount of Securities is
required hereunder, Securities held by the Company or its affiliates (other than
subsequent Holders of Securities if such subsequent Holders are deemed to be
affiliates solely by reason of their holdings of such Securities)
shall not be counted in determining whether such consent or approval was
given by the Holders of such required percentage.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among the Initial Purchasers and the Company in accordance with its terms.
Very truly yours,
AFFYMETRIX, INC.
By:______________________
Name:
Title:
The foregoing Registration
Rights Agreement is hereby confirmed
and accepted as of the date first
above written.
CREDIT SUISSE FIRST BOSTON CORPORATION,
Acting on behalf of themselves and as
The Representative of the several Initial
Purchasers
CREDIT SUISSE FIRST BOSTON CORPORATION,
By:___________________________________
Name:
Title:
