EXHIBIT 4.7
EXECUTION COPY
XXXXXXXXXX TECHNOLOGY INCORPORATED
2.25% CONVERTIBLE SUBORDINATED NOTES
DUE 2010
REGISTRATION RIGHTS AGREEMENT
New York, New York
Dated as of February 24, 2003
Xxxxxxx Xxxxx Barney Inc.
Xxxxxxx & Company, Inc.
c/o Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Xxxxxxxxxx Technology Incorporated, a Minnesota corporation (the
"Company"), proposes to issue and sell (the "Initial Placement") to the
Purchasers (as defined herein) upon the terms set forth in a purchase agreement
dated February 18, 2003 (the "Purchase Agreement") between the Purchasers and
the Company, $130,000,000 principal amount (plus up to an additional $20,000,000
aggregate principal amount to cover over-allotments, if any) of its 2.25%
Convertible Subordinated Notes due 2010 (the "Securities"). As an inducement to
the Purchasers to enter into the Purchase Agreement and in satisfaction of a
condition to the obligations of the Purchasers thereunder, the Company agrees
with the Purchasers (i) for the benefit of the Purchasers and (ii) for the
benefit of the holders from time to time of the Securities and the Common Stock,
par value $0.01 per share (the "Stock", which term shall also include the
associated common share purchase rights), of the Company issuable upon
conversion of the Securities, including the Purchasers (each of the foregoing a
"Holder" and, together, the "Holders"), as follows:
1. DEFINITIONS. (a) Capitalized terms used herein without definition
shall have their respective meanings set forth in or pursuant to the Purchase
Agreement or the Final Offering Memorandum, dated February 18, 2003 in respect
of the Securities. As used in this Agreement, the following defined terms shall
have the following meanings:
"Act" or "Securities Act" means the United States Securities Act of
1933, as amended, and the rules and regulations of the Commission promulgated
thereunder.
"Affiliate" of any specified person means any other person which,
directly or indirectly, is in control of, is controlled by, or is under common
control with such specified person. For purposes of this definition, control of
a person means the power, direct or indirect, to direct or cause the direction
of the management and policies of such person whether by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Commission" means the United States Securities and Exchange
Commission.
"DTC" means The Depository Trust Company.
"Effectiveness Period" has the meaning set forth in Section 2 hereof.
"Electing Holder" has the meaning assigned thereto in Section 3(a)(3)
hereof.
"Exchange Act" means the United States Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission promulgated
thereunder.
"Holder" shall have the meaning set forth in the preamble hereto.
"Indenture" means the Indenture, dated of even date herewith, between
the Company and LaSalle Bank National Association, as trustee, as amended and
supplemented from time to time in accordance with its terms.
"Initial Placement" shall have the meaning set forth in the preamble
hereto.
"Managing Underwriters" means the investment banker or investment
bankers and manager or managers that shall administer an underwritten offering,
if any, as set forth in Section 6 hereof.
"Notice and Questionnaire" means a Selling Securityholder Notice and
Questionnaire substantially in the form of Exhibit A hereto.
"Person" shall mean an individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political subdivision
thereof.
"Prospectus" means the prospectus included in any Shelf 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 under the Act), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Registrable Securities.
"Purchasers" means the Purchasers named in Schedule I to the Purchase
Agreement.
"Registrable Securities" means all or any portion of the Securities
issued from time to time under the Indenture in registered form and the shares
of Stock issuable upon conversion of such Securities; provided, however, that a
security ceases to be a Registrable Security when it is no longer a Restricted
Security.
"Restricted Security" means any Security or share of Stock issuable
upon conversion thereof except any such Security or share of Stock which (i) has
been transferred pursuant to a Shelf
Registration Statement or another registration statement covering such Security
or share of Stock, which has been filed with the Commission pursuant to the
Securities Act, in either case after such registration statement has become, and
while such registration is, effective under the Securities Act, (ii) has been
transferred in compliance with Rule 144 under the Securities Act (or any
successor provision thereto), or (iii) may be sold or transferred pursuant to
Rule 144(k) under the Act (or any successor provision then in force).
"Shelf Registration" means a registration effected pursuant to Section
2 hereof.
"Shelf Registration Statement" means a shelf registration statement of
the Company pursuant to the provisions of Section 2 hereof filed with the
Commission which covers some or all of the Registrable Securities, as
applicable, on an appropriate form under Rule 415 under the Act, or any similar
rule that may be adopted by the Commission, amendments and supplements to such
registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"underwriter" means any underwriter of Registrable Securities in
connection with an offering thereof under a Shelf Registration Statement.
(b) Wherever there is a reference in this Agreement to a percentage of
the "principal amount" of Registrable Securities, Common Stock shall be treated
as representing the principal amount of Securities which was surrendered for
conversion or exchange in order to receive such number of shares of Common
Stock.
2. SHELF REGISTRATION. (a) The Company shall, within 90 days following
the date of original issuance (the "Issue Date") of the Securities, file with
the Commission a Shelf Registration Statement relating to the offer and sale of
the Registrable Securities by the Holders from time to time in accordance with
the methods of distribution elected by such Holders and set forth in such Shelf
Registration Statement and, thereafter, shall use its reasonable best efforts to
cause such Shelf Registration Statement to be declared effective under the Act
within 180 calendar days after the Issue Date; provided that if any Securities
are issued upon exercise of the over-allotment option granted to the Purchasers
in the Purchase Agreement and the date on which such Securities are issued
occurs after the Issue Date, the Company will take such steps, prior to the
effective date of the Shelf Registration Statement, to ensure that such
Securities and Common Stock issuable upon conversion thereof are included in the
Shelf Registration Statement on the same terms as the Securities issued on the
Issue Date; and provided, further, that no Holder shall be entitled to have the
Registrable Securities held by it covered by such Shelf Registration unless such
Holder is an Electing Holder.
(b) If (i) on or prior to 90 days following the date of original
issuance of the Securities, a Shelf Registration Statement has not been
filed with the Commission, (ii) on or prior to the 180th day following
the date of original issuance of the Securities, such Shelf
Registration Statement is not declared effective or (iii) the Shelf
Registration Statement ceases to be effective prior to two years after
the Issue Date or if later, two years from the last date on which any
Option Securities were issued upon exercise of the Purchasers'
over-allotment option or such earlier date as is provided in Section
2(c) of this Agreement for a period (including any Delay Period) in
excess of 60 days, whether or not consecutive, during any 12-month
period (each such event referred to in clauses (i), (ii) and (iii)
being referred to
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herein as a "Registration Default"), additional interest ("Liquidated
Damages") will accrue on the Securities that are Restricted Securities
from and including the day following such Registration Default to but
excluding the day on which such Registration Default has been cured.
Liquidated Damages will be paid semi-annually in arrears, with the
first semi-annual payment due on the first Interest Payment Date in
respect of the Registrable Securities following the date on which such
Liquidated Damages begin to accrue, and will accrue (A) at a rate per
annum equal to an additional one-quarter of one percent (0.25%) of the
principal amount of the Registrable Securities outstanding or $2.50 per
33.5121 shares of Stock, to and including the 90th day following such a
Registration Default and (B) at a rate per annum equal to one-half of
one percent (0.50%) thereof or $5.00 per 33.5121 shares of Stock, from
and after the 91st day following such a Registration Default.
(c) The Company shall use its reasonable best efforts:
(i) To keep the Shelf Registration Statement continuously
effective in order to permit the Prospectus forming a part thereof to
be usable by Holders for a period of two years from the Issue Date or
if later, two years from the last date on which any Option Securities
were issued upon exercise of the Purchasers' over-allotment option or
such shorter period that will terminate upon the earliest of the
following: (A) when all the Securities and the shares of Stock issuable
upon conversion of the Securities covered by the Shelf Registration
Statement have been sold pursuant to the Shelf Registration Statement
or pursuant to Rule 144 and (B) when, in the written opinion of
independent counsel to the Company, all outstanding Registrable
Securities held by persons that are not affiliates of the Company may
be resold without registration under the Act pursuant to Rule 144(k)
under the Act or any successor provision thereto (in any such case,
such period being called the "Effectiveness Period"); and
(ii) After the date the Shelf Registration Statement becomes
effective, within 10 Business Days after the request of any Holder of
Registrable Securities that is not then an Electing Holder, to take any
action necessary and required by law to enable such Holder to use the
Prospectus forming a part thereof for resales of Registrable
Securities, including, without limitation, any action necessary to
identify such Holder as a selling securityholder in the Shelf
Registration Statement; provided, however, that nothing in this
subparagraph shall relieve such Holder of the obligation to return a
completed and signed Notice and Questionnaire to the Company in
accordance with Section 3(a)(2) hereof; and
(iii) If at any time, the Securities, pursuant to Article XII of
the Indenture, are convertible into securities other than Common Stock,
the Company shall, or shall cause any successor under the Indenture to,
cause such securities to be included in the Shelf Registration
Statement no later than the date on which the Securities may then be
convertible into such securities.
The Company shall be deemed not to have used its reasonable best efforts to keep
the Shelf Registration Statement effective during the requisite period if the
Company voluntarily takes any action that would result in Holders of Registrable
Securities covered thereby not being able to offer and sell any such Registrable
Securities during that period, unless (i) such action is required by applicable
law, or (ii) the continued effectiveness of the Shelf Registration Statement
would require the Company to disclose material non-public information, and the
Board of Directors shall have
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determined in good faith that such disclosure is not in the best interests of
the Company; provided that the Company thereafter must promptly comply with the
requirements of paragraph 3(j) below, if applicable, and the Company shall be
entitled to suspend the use of any prospectus forming a part of an effective
Registration Statement under this Section 2 for a reasonable period of time (a
"Delay Period"), except that the aggregate number of days included in all Delay
Periods during any consecutive 12 months shall not exceed 60 days (whether or
not consecutive).
3. REGISTRATION PROCEDURES. In connection with any Shelf Registration
Statement, the following provisions shall apply:
(a) (1) Not less than 30 calendar days prior to the effective time
of the Shelf Registration Statement, the Company shall mail the Notice
and Questionnaire to the Holders of Registrable Securities. No Holder
shall be entitled to be named as a selling securityholder in the Shelf
Registration Statement as of the effective time, and no Holder shall be
entitled to use the Prospectus forming a part thereof for resales of
Registrable Securities at any time, unless such Holder has returned a
completed and signed Notice and Questionnaire to the Company by the
deadline for response set forth therein at least 10 days prior to the
effective time of the Shelf Registration Statement; provided, however,
that Holders of Registrable Securities shall have at least 20 calendar
days from the date on which the Notice and Questionnaire is first
mailed to such Holders to return a completed and signed Notice and
Questionnaire to the Company.
(2) After the effective time of the Shelf Registration Statement,
the Company shall, upon the request of any Holder of Registrable
Securities that is not then an Electing Holder, promptly send a Notice
and Questionnaire to such Holder. The Company shall not be required to
take any action to name such Holder as a selling securityholder in the
Shelf Registration Statement or to enable such Holder to use the
Prospectus forming a part thereof for resales of Registrable Securities
until such Holder has returned a completed and signed Notice and
Questionnaire to the Company. The Company shall (i) as promptly as
practicable after the date a completed and signed Notice and
Questionnaire is delivered to the Company, and in any event within 10
Business Days after such date, prepare and file with the SEC (x) a
supplement to the Prospectus or, if required by applicable law, a
post-effective amendment to the Shelf Registration Statement and (y)
any other document required by applicable law, so that the Holder
delivering such Notice and Questionnaire is named as a selling
securityholder in the Shelf Registration Statement and is permitted to
deliver the Prospectus to purchasers of such Holder's Restricted
Securities in accordance with applicable law, and (ii) if the Company
shall file a post-effective amendment to the Shelf Registration
Statement, use its reasonable best efforts to cause such post-effective
amendment to become effective under the Act as promptly as is
practicable; provided, however, that if a Notice and Questionnaire is
delivered to the Company during a Delay Period, the Company shall not
be obligated to take the actions set forth in clauses (i) and (ii)
until the termination of such Delay Period.
(3) The term "Electing Holder" shall mean any Holder of
Registrable Securities that has returned a completed and signed Notice
and Questionnaire to the Company in accordance with Section 3(a)(1) or
3(a)(2) hereof.
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(b) The Company shall furnish to the Purchasers, prior to the
filing thereof with the Commission, a copy of any Shelf Registration
Statement, and each amendment thereof and each amendment or supplement,
if any, to the Prospectus included therein.
(c) The Company shall promptly take such action as may be
necessary so that (i) any Shelf Registration Statement and any
amendment thereto and any Prospectus forming part thereof and any
amendment or supplement thereto (and each report or other document
incorporated therein by reference in each case) complies in all
material respects with the Securities Act and the Exchange Act, (ii)
any Shelf Registration Statement and any amendment thereto does not,
when it becomes effective, contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading and (iii) any
Prospectus forming part of any Shelf Registration Statement, and any
amendment or supplement to such Prospectus, does not include an untrue
statement of a material fact or omit to state a material fact necessary
in order to make the statements, in the light of the circumstances
under which they were made, not misleading. In fulfilling its
obligations under this Section 3(c), the Company may rely on the
accuracy of any information provided to it by an Electing Holder with
respect to that Electing Holder without any independent verification
thereof.
(d) (1) The Company shall advise the Purchasers and, in the
case of clause (i), the Electing Holders, and, if requested by the
Purchasers or any such Electing Holder, confirm such advice in writing:
(i) when a Shelf Registration Statement and any amendment
thereto has been filed with the Commission and when the Shelf
Registration Statement or any post-effective amendment thereto
has become effective; and
(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.
(2) The Company shall advise the Purchasers and the Electing
Holders and, if requested by the Purchasers or any such Electing
Holder, confirm such advice in writing of:
(i) the issuance by the Commission of any stop order
suspending effectiveness of the Shelf Registration Statement or
the initiation of any proceedings for that purpose;
(ii) the receipt by the Company of any notification with
respect to the suspension of the qualification of the securities
included therein for sale in any jurisdiction or the initiation
of any proceeding for such purpose; and
(iii) the happening of any event that requires the making
of any changes in the Shelf Registration Statement or the
Prospectus so that, as of such date, the Shelf Registration
Statement and the Prospectus do not contain an untrue statement
of a material fact and do not 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
advice shall be accompanied by an instruction to suspend the use
of the Prospectus until the requisite changes have been made).
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(e) The Company shall use its reasonable best efforts to prevent
the issuance and, if issued, to obtain the withdrawal, of any order
suspending the effectiveness of any Shelf Registration Statement at the
earliest possible time.
(f) The Company shall furnish to each Electing Holder included
within the coverage of any Shelf Registration Statement, without
charge, at least one copy of such Shelf Registration Statement and any
post-effective amendment thereto, including financial statements and
schedules, and, if the Electing Holder so requests in writing, all
reports, other documents and exhibits that are filed with or
incorporated by reference in the Shelf Registration Statement.
(g) The Company shall, during the Effectiveness Period, deliver
to each Electing Holder of Registrable Securities included within the
coverage of any Shelf Registration Statement, without charge, as many
copies of the Prospectus (including each preliminary Prospectus)
included in such Shelf Registration Statement and any amendment or
supplement thereto as such Electing Holder may reasonably request; and
the Company consents (except during the continuance of any event
described in Section 3(d)(2)(iii)) to the use of the Prospectus or any
amendment or supplement thereto by each of the Electing Holders of
Registrable Securities in connection with the offering and sale of the
Registrable Securities covered by the Prospectus or any amendment or
supplement thereto during the Effectiveness Period.
(h) Prior to any offering of Registrable Securities pursuant to
any Shelf Registration Statement, the Company shall register or qualify
or cooperate with the Electing Holders of Registrable Securities
included therein and their respective counsel in connection with the
registration or qualification of such Registrable Securities for offer
and sale under the securities or blue sky laws of such jurisdictions in
the United States as any such Electing Holders reasonably request 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 Registrable
Securities covered by such Shelf Registration Statement; provided,
however, that in no event shall the Company be obligated to (i) qualify
as a foreign corporation or as a dealer in securities in any
jurisdiction where it would not otherwise be required to so qualify but
for this Section 3(h), (ii) file any general consent to service of
process in any jurisdiction where it is not as of the date hereof then
so subject or (iii) subject itself to taxation in any such jurisdiction
if it is not so subject.
(i) Unless any Registrable Securities shall be in book-entry
only form, the Company shall cooperate with the Electing Holders of
Registrable Securities to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold
pursuant to any Shelf Registration Statement free of any restrictive
legends and in such permitted denominations and registered in such
names as Electing Holders may request in connection with the sale of
Registrable Securities pursuant to such Shelf Registration Statement.
(j) Upon the occurrence of any event contemplated by paragraph
3(d)(2)(iii) above, subject to the Company's ability to institute a
Delay Period in accordance with Section 2(c), the Company shall
promptly prepare a post-effective amendment to any Shelf Registration
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Statement or an amendment or supplement to the related Prospectus or
file any other required document so that, as thereafter delivered to
purchasers of the Registrable Securities included therein, the
Prospectus will not include an untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading (except, in each case, for an untrue statement of a
material fact or omission of a material fact made in reliance on and in
conformity with written information furnished to the Company by or on
behalf of Electing Holders specifically for use therein). If the
Company notifies the Electing Holders of the occurrence of any event
contemplated by paragraph 3(d)(2)(iii) above, the Electing Holders
shall suspend the use of the Prospectus until the requisite changes to
the Prospectus have been made and shall keep such notification
confidential, unless disclosure of such notification is made in
connection with a court proceeding or required by law, or information
regarding such notification becomes available to the public generally
or through a third party without an accompanying obligation of
confidentiality.
(k) Not later than the effective date of any Shelf Registration
Statement hereunder, the Company shall provide a CUSIP number for the
Securities registered under such Shelf Registration Statement.
(l) The Company shall use its reasonable best efforts to comply
with all applicable rules and regulations of the Commission, and to
make generally available to its securityholders as soon as practicable,
but in any event not later than eighteen months after (i) the effective
date (as defined in Rule 158(c) under the Securities Act) of the Shelf
Registration Statement, (ii) the effective date of each post-effective
amendment to the Shelf Registration Statement, and (iii) the date of
each filing by the Company with the Commission of an Annual Report on
Form 10-K that is incorporated by reference in the Shelf Registration
Statement, an earning statement of the Company and its subsidiaries
complying with Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder (including, at the option of
the Company, Rule 158).
(m) Not later than the effective time of the Shelf Registration
Statement, the Company shall cause the Indenture to be qualified under
the Trust Indenture Act; in connection with such qualification, the
Company shall cooperate with the Trustee under the Indenture to effect
such changes to the Indenture as may be required for such Indenture to
be so qualified in accordance with the terms of the Trust Indenture
Act; and the Company shall execute, and shall use all reasonable
efforts to cause the Trustee to execute, all documents that may be
required to effect such changes and all other forms and documents
required to be filed with the Commission to enable such Indenture to be
so qualified in a timely manner. In the event that any such amendment
or modification referred to in this Section 3(m) involves 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.
(n) The Company may require each Electing Holder of Registrable
Securities to be sold pursuant to any Shelf Registration Statement to
furnish to the Company such information regarding the Electing Holder
and the distribution of such Registrable Securities as may be required
by applicable law or regulation for inclusion in such Shelf
Registration Statement and the Company may exclude from such
registration the Registrable Securities
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of any Electing Holder that fails to furnish such information within a
reasonable time after receiving such request.
(o) The Company shall, if requested, promptly include or
incorporate in a Prospectus supplement or post-effective amendment to a
Shelf Registration Statement, such information as the Managing
Underwriters, if any, reasonably agree should be included therein and
to which the Company does not reasonably object and shall make all
required filings of such Prospectus supplement or post-effective
amendment as soon as practicable after they are notified of the matters
to be included or incorporated in such Prospectus supplement or
post-effective amendment.
(p) The Company shall enter into such customary agreements
(including underwriting agreements in customary form) to take all other
appropriate actions in order to expedite or facilitate the registration
or the disposition of the Registrable Securities, and in connection
therewith, if an underwriting agreement is entered into, cause the same
to contain indemnification provisions and procedures substantially
identical to those set forth in Section 5 with respect to all persons
to be indemnified pursuant to Section 5.
(q) The Company shall:
(i) (A) make reasonably available for inspection by the
Electing Holders of Registrable Securities to be registered
thereunder, any underwriter participating in any disposition
pursuant to such Shelf Registration Statement, and any attorney,
accountant or other agent retained by such Electing Holders or
any such underwriter all relevant financial and other records,
pertinent corporate documents and properties of the Company and
its subsidiaries; and (B) cause the Company's officers, directors
and employees to make reasonably available for inspection all
relevant information reasonably requested by such Electing
Holders or any such underwriter, attorney, accountant or agent in
connection with any such Shelf Registration Statement, in each
case, as is customary for similar due diligence examinations;
provided, however, that any information that is designated in
writing by the Company, in good faith, as confidential at the
time of delivery of such information shall be kept confidential
by such Electing Holders or any such underwriter, attorney,
accountant or agent, unless such disclosure is made in connection
with a court proceeding or required by law, or such information
becomes available to the public generally or through a third
party without an accompanying obligation of confidentiality; and
provided, further, that the foregoing inspection and information
gathering shall, to the greatest extent possible, be coordinated
on behalf of the Electing Holders and the other parties entitled
thereto by one counsel designated by and on behalf of such
Electing Holders and other parties reasonably acceptable to the
Company;
(ii) in connection with any underwritten offering conducted
pursuant to Section 6, make such representations and warranties
to the Electing Holders of Registrable Securities registered
thereunder and the underwriters, if any, in form, substance and
scope as are customarily made by the Company to underwriters in
primary underwritten offerings and covering matters including,
but not limited to, those set forth in the Purchase Agreement;
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(iii) in connection with any underwritten offering pursuant
to Section 6, obtain opinions of counsel to the Company and
updates thereof (which counsel and opinions (in form, scope and
substance) shall be reasonably satisfactory to the Managing
Underwriters, if any) in customary form addressed to each
Electing Holder and the underwriters, if any, covering such
matters as are customarily covered in opinions requested in
underwritten offerings and such other matters as may be
reasonably requested by such Electing Holders and underwriters
(it being agreed that the matters to be covered by such opinion
or written statement by such counsel delivered in connection with
such opinions shall include in customary form, without
limitation, 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 such Shelf Registration Statement and the prospectus
included therein, as then amended or supplemented, including the
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);
(iv) in connection with any underwritten offering pursuant
to Section 6, obtain "cold comfort" letters and updates thereof
from the independent public accountants of the Company (and, if
necessary, any other independent public accountants of any
subsidiary of the Company who were previously engaged by the
Company for which financial statements and financial data are, or
are required to be, included in the Shelf Registration Statement;
provided, however, that with regard to Xxxxxx Xxxxxxxx LLP, the
Company may satisfy the requirements of this Section 3(q)(iv) by
delivery of an Officer's Certificate substantially similar to the
Officer's Certificate delivered to the Purchasers on February 24,
2003 relating to financial information for fiscal periods during
which the Company was audited by Xxxxxx Xxxxxxxx LLP), addressed
to each such Electing Holder of Registrable Securities registered
thereunder and the underwriters, if any, in customary form and
covering matters of the type customarily covered in "cold
comfort" letters in connection with primary underwritten
offerings;
(v) in connection with any underwritten offering pursuant to
Section 6, deliver such documents and certificates as may be
reasonably requested by any such Electing Holders and the
Managing Underwriters, if any, including those to evidence
compliance with Section 3(i) and with any customary conditions
contained in the underwriting agreement or other agreement
entered into by the Company.
The foregoing actions set forth in clauses (ii), (iii), (iv), and (v)
of this Section 3(q) shall be performed at each closing under any
underwritten offering to the extent required thereunder.
(r) The Company will use its reasonable best efforts to cause the
Stock issuable upon conversion thereof to be listed for quotation on
the Nasdaq National Market System or other stock exchange or trading
system on which the Stock primarily trades on or prior to the effective
date of any Shelf Registration Statement hereunder.
(s) In the event that any broker-dealer registered under the
Exchange Act shall underwrite any Registrable Securities or participate
as a member of an underwriting syndicate or selling group or "assist in
the distribution" (within the meaning of the Conduct Rules and the
By-Laws of the National Association of Securities Dealers, Inc.
("NASD"))
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thereof, whether as an Electing Holder of such Registrable Securities
or as an underwriter, a placement or sales agent or a broker or dealer
in respect thereof, or otherwise, assist such broker-dealer in
complying with the requirements of such Rules and By-Laws by providing
such information to such broker-dealer as may be required in order for
such broker-dealer to comply with the requirements of the Conduct Rules
of the NASD.
(t) The Company shall use its reasonable best efforts to take all
other steps necessary to effect the registration, offering and sale of
the Registrable Securities covered by the Shelf Registration Statement
contemplated hereby.
4. REGISTRATION EXPENSES. Except as otherwise provided in Section 6,
the Company shall bear all fees and expenses incurred in connection with the
performance of its obligations under Sections 2, 3 and 6 hereof.
5. INDEMNIFICATION AND CONTRIBUTION. (a) In connection with any Shelf
Registration Statement, the Company shall indemnify and hold harmless each
Electing Holder (including any Purchaser for whom Registrable Securities are
included on such Shelf Registration Statement), each underwriter who
participates in an offering of Registrable Securities, each person, if any, who
controls any of such persons within the meaning of either the Act or the
Exchange Act and each of their respective directors, officers, employees and
agents against any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject under the Act, the
Exchange Act or other Federal or state statutory law or regulation, at common
law or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the Shelf
Registration Statement under which such Registrable Securities are to be
registered under the Securities Act (or in any supplement or amendment thereto),
or any Prospectus contained therein or furnished by the Company to any
indemnified person, or any amendment or supplement thereto, 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, in the light of the circumstances
under which they were made, not misleading, and agrees to reimburse each such
indemnified person, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the Company will not
be liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made in such Shelf Registration
Statement or Prospectus, or in any amendment thereof or supplement thereto, in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of any Electing Holder specifically for inclusion
therein; provided, further, that the Company shall not be liable to any
indemnified person under the indemnity agreement in this subsection (a) with
respect to any Shelf Registration Statement or Prospectus to the extent that any
such loss, claim, damage or liability of such indemnified person results from
the fact that such indemnified person sold Securities to a person as to whom it
shall be established that there was not sent or given, at or prior to the
written confirmation of such sale, a copy of the Shelf Registration Statement or
Prospectus in any case if the Company had previously furnished copies thereof in
sufficient quantity to such indemnified person and (b) to the extent the loss,
claim, damage or liability of such indemnified person results from an untrue
statement or omission of a material fact contained in the Shelf Registration
Statement or Prospectus which was subsequently corrected in the Shelf
Registration Statement or Prospectus, if (i) the Company had
-11-
previously furnished copies of such corrected Shelf Registration Statement or
Prospectus in sufficient quantity to such indemnified person and (ii) such loss,
claim, damage or liability would have been eliminated by the delivery of such
corrected Shelf Registration Statement or Prospectus. This indemnity agreement
will be in addition to any liability which the Company may otherwise have.
(b) Each Electing Holder (including any Purchaser for whom Registrable
Securities are included on the applicable Shelf Registration Statement)
severally and not jointly agrees to indemnify and hold harmless the Company,
each underwriter who participates in an offering of Registrable Securities and
the other Electing Holders and each of their respective directors, officers, and
each person who controls any such person within the meaning of either the Act or
the Exchange Act, to the same extent as the foregoing indemnity from the Company
to each Electing Holder and each underwriter who participates in an offering or
Registrable Securities, but only with reference to written information relating
to such Electing Holder furnished to the Company by or on behalf of the Electing
Holder specifically for inclusion in the Shelf Registration Statement or
Prospectus (or in any amendment or supplement thereto). This indemnity agreement
will be in addition to any liability which any Electing Holder may otherwise
have.
(c) Promptly after receipt by an indemnified person under this Section
5 of notice of the commencement of any action, such indemnified person will, if
a claim in respect thereof is to be made against the indemnifying person under
Section 5(a) or (b), notify the indemnifying person in writing of the
commencement thereof; but the failure so to notify the indemnifying person (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying person of substantive rights and defenses;
and (ii) will not, in any event, relieve the indemnifying person from any
obligations to any indemnified person other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying person shall be
entitled to appoint counsel of the indemnifying person's choice at the
indemnifying person's expense to represent the indemnified person in any action
for which indemnification is sought (in which case the indemnifying person shall
not thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified person or persons except as set forth below);
provided, however, that such counsel shall be reasonably satisfactory to the
indemnified person. Notwithstanding the indemnifying person's election to
appoint counsel to represent the indemnified person in an action, the
indemnified person shall have the right to employ separate counsel (including
local counsel), and the indemnifying person shall bear the reasonable fees,
costs and expenses of such separate counsel if (i) a conflict or potential
conflict exists (based upon advice of counsel to the indemnified person) between
the indemnified person and the indemnifying person; (ii) the indemnified person
shall have reasonably concluded that there may be legal defenses available to it
and/or other indemnified persons which are different from or additional to those
available to the indemnifying person; (iii) the indemnifying person shall not
have employed counsel satisfactory to the indemnified person to represent the
indemnified person within a reasonable time after notice of the institution of
such action; or (iv) the indemnifying person shall authorize in writing the
indemnified person to employ separate counsel at the expense of the indemnifying
person. It is understood that the indemnifying person or persons shall not, in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the reasonable fees, disbursements and other charges of more than
one separate firm of attorneys (in addition to any local counsel) at any one
time for all such indemnified person or persons. Each indemnified person, as a
condition of the indemnity agreements contained in Sections 5(a) and 5(b), shall
use all reasonable efforts to cooperate with
-12-
the indemnifying person in the defense of any such action or claim. No
indemnifying person shall be liable for any settlement of any such action
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with its written consent or if there be a final
judgment for the plaintiff in any such action, the indemnifying person agrees to
indemnify and hold harmless any indemnified person from and against any loss or
liability by reason of such settlement or judgment. An indemnifying person will
not, without the prior written consent of the indemnified persons (which consent
shall not be unreasonably withheld), settle or compromise or consent to the
entry of any judgment with respect to any pending or threatened claim, action,
suit or proceeding in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified persons are actual or potential
persons to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified person from all liability
arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b) of
this Section 5 is unavailable to or insufficient to hold harmless an indemnified
person for any reason, then each applicable indemnifying person severally shall
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating or
defending same) (collectively "Losses") to which such indemnified person may be
subject in such proportion as is appropriate to reflect the relative benefits
received by the indemnifying person or persons on the one hand and the
indemnified person or persons on the other. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, then each
applicable indemnifying person severally shall contribute in such proportion as
is appropriate to reflect not only such relative benefits but also the relative
fault of such indemnifying person or persons on the one hand and such
indemnified person or persons on the other in connection with the statements or
omissions which 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 (before deducting expenses) of
the Registrable Securities to which such Losses relate and benefits received by
the Electing Holders shall be deemed to be equal to the value of receiving
Registrable Securities that are registered under the Act. Relative fault shall
be determined by reference to, among other things, whether any untrue or any
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information provided by the indemnifying
person or persons on the one hand or the indemnified person or persons on the
other, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The parties hereto agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any other method of
allocation which does not take account of the equitable considerations referred
to above. Notwithstanding the provisions of this paragraph (d), no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 5(d), each person who
controls an Electing Holder (including any Purchaser for whom Registrable
Securities are included on the applicable Shelf Registration Statement) within
the meaning of either the Act or the Exchange Act and each director, officer,
employee and agent of an Electing Holder (including any Purchaser for whom
Registrable Securities are included on the applicable Shelf Registration
Statement) shall have the same rights to contribution as such Electing Holder
(including any Purchaser for whom Registrable Securities are included on the
applicable Shelf Registration Statement), and each person who controls the
Company within the meaning of either the Act or the Exchange Act and each
officer and director of
-13-
the Company shall have the same rights to contribution as the Company, subject
in each case to the applicable terms and conditions of this paragraph (d).
(e) Notwithstanding any other provision of this Section 5, in no event
will any (i) Electing Holder be required to undertake liability to any person
under this Section 5 for any amounts in excess of the dollar amount of the
proceeds to be received by such Holder from the sale of such Holder's
Registrable Securities (after deducting any fees, discounts and commissions
applicable thereto) pursuant to any Shelf Registration Statement under which
such Registrable Securities are to be registered under the Securities Act and
(ii) underwriter, selling agent or other securities professional be required to
undertake liability to any person hereunder for any amounts in excess of the
discount, commission or other compensation payable to such underwriter, selling
agent or other securities professional with respect to the Registrable
Securities underwritten by it and distributed to the public.
(f) The obligations of an indemnifying person under this Section 5
shall be in addition to any liability which such indemnifying person may
otherwise have and shall extend, or not extend, as the case may be, to any
indemnified person. The remedies provided in this Section 5 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
an indemnified person at law or in equity.
6. UNDERWRITTEN OFFERING. The Electing Holders of Registrable
Securities covered by the Shelf Registration Statement who desire to do so may
sell such Registrable Securities in an underwritten offering in accordance with
the conditions set forth below. In any such underwritten offering, the
investment banker or bankers and manager or managers that will administer the
offering will be selected by, and the underwriting arrangements with respect
thereto will be approved by, the Electing Holders of a majority of the
Registrable Securities to be included in such offering. No Electing Holder may
participate in any underwritten offering contemplated hereby unless such
Electing Holder (a) agrees to sell such Electing Holder's Registrable Securities
in accordance with any approved underwriting arrangements, (b) completes and
executes all reasonable questionnaires, powers of attorney, indemnities,
underwriting agreements, lock-up letters and other documents required under the
terms of such approved underwriting arrangements and (c) at least 25% of the
outstanding Registrable Securities are included in such underwritten offering.
The Electing Holders participating in any underwritten offering shall be
responsible for any expenses customarily borne by selling securityholders,
including underwriting discounts and commissions and fees and expenses of
counsel to the selling securityholders and shall reimburse the Company for the
fees and disbursements of their counsel, their independent public accountants
and any printing expenses incurred in connection with such underwritten
offerings. Notwithstanding the foregoing or the provisions of Section 3(o)
hereof, upon receipt of a request from the Managing Underwriter or a
representative of Electing Holders of a majority of the Registrable Securities
outstanding to prepare and file an amendment or supplement to the Shelf
Registration Statement and Prospectus in connection with an underwritten
offering, the Company may delay the filing of any such amendment or supplement
for up to 60 days if the Company in good faith has a valid business reason for
such delay.
-14-
7. MISCELLANEOUS.
(a) Other Registration Rights. From the date of this Agreement, the
Company may grant registration rights that would permit any Person that is a
third party the right to piggy-back on any Shelf Registration Statement,
provided that if the Managing Underwriter, if any, of such offering delivers an
opinion to the Electing Holders that the total amount of securities which they
and the Holders of such piggy-back rights intend to include in any Shelf
Registration Statement is so large as to materially adversely affect the success
of such offering (including the price at which such securities can be sold),
then the amount, the number or kind of securities to be offered for the account
of Holders of such piggy-back rights granted after the date of this agreement
will be reduced to the extent necessary to reduce the total amount of securities
to be included in such offering to the amount, number or kind recommended by the
Managing Underwriter prior to any reduction in the amount of Registrable
Securities to be included.
(b) Amendments and Waivers. This Agreement, including this Section
7(b), may be amended, and waivers or consents to departures from the provisions
hereof may be given, only by a written instrument duly executed by the Company,
the Purchasers and the Holders of a majority in aggregate principal amount of
Registrable Securities then outstanding. Each Holder of Registrable Securities
outstanding at the time of any such amendment, waiver or consent or thereafter
shall be bound by any amendment, waiver or consent effected pursuant to this
Section 7(b), whether or not any notice, writing or marking indicating such
amendment, 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 given as provided in the Indenture.
(d) Parties in Interest. The parties to this Agreement intend that all
Holders of Registrable Securities shall be entitled to receive the benefits of
this Agreement and that any Electing Holder shall be bound by the terms and
provisions of this Agreement by reason of such election with respect to the
Registrable Securities which are included in a Shelf Registration Statement. All
the terms and provisions of this Agreement shall be binding upon, shall inure to
the benefit of and shall be enforceable by the respective successors and assigns
of the parties hereto and any Holder from time to time of the Registrable
Securities to the aforesaid extent. In the event that any transferee of any
Holder of Registrable Securities shall acquire Registrable Securities, in any
manner, whether by gift, bequest, purchase, operation of law or otherwise, such
transferee shall, without any further writing or action of any kind, be entitled
to receive the benefits of and, if an Electing Holder, be conclusively deemed to
have agreed to be bound by and to perform all of the terms and provisions of
this Agreement to the aforesaid extent.
(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.
-15-
(g) Governing Law. This agreement shall be governed by and construed in
accordance with the laws of the State of New York without reference to
principles of conflicts of law.
(h) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired or affected
thereby, it being intended that all of the rights and privileges of the parties
shall be enforceable to the fullest extent permitted by law.
(i) Survival. The respective indemnities, agreements, representations,
warranties and other provisions set forth in this Agreement or made pursuant
hereto shall remain in full force and effect, regardless of any investigation
(or any statement as to the results thereof) made by or on behalf of any
Electing Holder, any director, officer or partner of such Holder, any agent or
underwriter, any director, officer or partner of such agent or underwriter, or
any controlling person of any of the foregoing, and shall survive the transfer
and registration of the Registrable Securities of such Holder.
-16-
Please confirm that the foregoing correctly sets forth the agreement
between the Company and you.
Very truly yours,
XXXXXXXXXX TECHNOLOGY
INCORPORATED
By /s/ Xxxx X. Xxxxx
------------------------
Name: Xxxx X. Xxxxx
Title: Treasurer
The foregoing Registration Rights Agreement is hereby confirmed and accepted as
of the date first above written:
Xxxxxxx Xxxxx Barney Inc.
Xxxxxxx & Company, Inc.
By: /s/ Xxxxx Xxx
(Xxxxxxx Xxxxx Xxxxxx Inc.)
Exhibit A
XXXXXXXXXX TECHNOLOGY INCORPORATED
INSTRUCTION TO DTC PARTICIPANTS
(Date of Mailing)
URGENT - IMMEDIATE ATTENTION REQUESTED
DEADLINE FOR RESPONSE: [DATE]
The Depository Trust Company ("DTC") has identified you as a DTC
Participant through which beneficial interests in the Xxxxxxxxxx Technology
Incorporated (the "Company") 2.25% Convertible Subordinated Notes due 2010 (the
"Securities") are held.
The Company is in the process of registering the Securities under the
Securities Act of 1933, as amended, for resale by the beneficial owners thereof.
In order to have their Securities included in the registration statement,
beneficial owners must complete and return the enclosed Selling Securityholder
Notice and Questionnaire.
It is important that beneficial owners of the Securities receive a copy
of the enclosed materials as soon as possible as their rights to have the
Securities included in the registration statement depend upon their returning
the Notice and Questionnaire by [DEADLINE FOR RESPONSE]. Please forward a copy
of the enclosed documents to each beneficial owner that holds interests in the
Securities through you. If you require more copies of the enclosed materials or
have any questions pertaining to this matter, please contact [Name, address and
telephone number of contact at the Company).
A-1
FORM OF SELLING SECURITYHOLDER NOTICE AND QUESTIONNAIRE
The undersigned beneficial holder of 2.25% Convertible Subordinated
Notes due 2010 (the "Securities") of Xxxxxxxxxx Technology Incorporated (the
"Company") or shares of common stock issuable upon conversion of the Securities
(together with the Securities, the "Restricted Securities") understands that the
Company has filed or intends to file with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (the "Shelf Registration
Statement") for the registration and resale under Rule 415 of the Securities Act
of 1933, as amended (the "Securities Act"), of the Restricted Securities in
accordance with the terms of the Registration Rights Agreement (the
"Registration Rights Agreement") dated as of February 24, 2003 between the
Company and the Purchasers named therein. The Registration Rights Agreement is
available from the Company upon request at the address set forth below. All
capitalized terms not otherwise defined herein shall have the meaning ascribed
thereto in the Registration Rights Agreement.
In order to sell or otherwise dispose of any Restricted Securities
pursuant to the Shelf Registration Statement, a beneficial owner of Restricted
Securities generally will be required to be named as a selling securityholder in
the related Prospectus, deliver a Prospectus to purchasers of Restricted
Securities and be bound by those provisions of the Registration Rights Agreement
applicable to such beneficial owner (including certain indemnification
provisions as described below). Beneficial owners are encouraged to complete and
deliver this Notice and Questionnaire prior to the effectiveness of the Shelf
Registration Statement so that such beneficial owners may be named as selling
securityholders in the related Prospectus at the time of effectiveness.
Certain legal consequences may arise from being named as selling
securityholders in the Shelf Registration Statement and the related Prospectus.
Accordingly, holders and beneficial owners of Restricted Securities are advised
to consult their own securities law counsel regarding the consequences of being
named or not being named as a selling securityholder in the Shelf Registration
Statement and the related Prospectus.
NOTICE
The undersigned beneficial owner (the "Selling Securityholder") of
Restricted Securities hereby gives notice to the Company of its intention to
sell or otherwise dispose of Restricted Securities beneficially owned by it and
listed below in Item 3 (unless otherwise specified under Item 3) pursuant to the
Shelf Registration Statement. The undersigned, by signing and returning this
Notice and Questionnaire, understands that it will be bound by the terms and
conditions of this Notice and Questionnaire and the Registration Rights
Agreement.
The undersigned hereby provides the following information to the
Company and represents and warrants that such information is accurate and
complete:
A-2
QUESTIONNAIRE
1. (a) Full Legal Name of Selling Securityholder:
--------------------------------------------------------------
(b) Full Legal Name of Registered Holder (if not the same as Item
1(a) above) through which Restricted Securities listed in Item
3 below are held (if the Restricted Securities are held
through a broker-dealer or other third party and, as a result,
you do not know the legal name of the registered holder,
please complete Item 1(c) below):
--------------------------------------------------------------
(c) Full legal name of broker-dealer or other third party through
which Restricted Securities listed in Item 3 below are held:
--------------------------------------------------------------
(d) Full Legal Name of DTC Participant (if applicable and if not
the same as Item 1(b) or (c) above) through which Restricted
Securities listed in Item 3 below are held:
--------------------------------------------------------------
2. Address for Notices to Selling Securityholder:
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Telephone:
-------------------------------------------------------------
Fax:
-------------------------------------------------------------------
Contact Person:
--------------------------------------------------------
3. Beneficial Ownership of Restricted Securities:
(a) Type and Principal Amount (or number of shares) of Restricted
Securities beneficially owned:
--------------------------------------------------------------
(b) CUSIP No(s). of such Restricted Securities beneficially owned:
--------------------------------------------------------------
A-3
Unless otherwise indicated in the space provided below, all Securities and all
shares of common stock listed in response to Item 3(a) above, and all shares of
common stock issuable upon conversion of the Securities listed in response to
Item 3(a) above, will be included in the Shelf Registration Statement. If the
undersigned does not wish all such Securities or shares of common stock to be so
included, please indicate below the principal amount or the number of shares to
be included:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
4. Beneficial Ownership of other securities of the Company owned by the
Selling Securityholder:
Except as set forth below in this Item 4, the undersigned is not the
beneficial or registered owner of any securities of the Company other
than the Restricted Securities listed above in Item 3.
(a) Type and Amount of other securities of the Company
beneficially owned by the Selling Securityholder:
-----------------------------------------------------------------------
-----------------------------------------------------------------------
(b) CUSIP No(s). of such other securities of the Company
beneficially owned:
-----------------------------------------------------------------------
-----------------------------------------------------------------------
5. Relationship with the Company:
Except as set forth below, neither the undersigned nor any of its
affiliates, directors or principal equity holders (5% or more) has held
any position or office or has had any other material relationship with
the Company (or its predecessor or affiliates) during the past three
years.
State any exceptions here:
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6. Plan of Distribution
A-4
Except as set forth below, the undersigned (including its donees or
pledgees) intends to distribute the Restricted Securities listed above
in Item 3 pursuant to the Shelf Registration Statement only as follows
(if at all): Such Restricted Securities may be sold from time to time
directly by the undersigned or alternatively through underwriters or
broker-dealers or agents. If the Restricted Securities are sold through
underwriters or broker-dealers, the Selling Securityholder will be
responsible for underwriting discounts or commissions or agent's
commissions. Such Restricted Securities may be sold in one or more
transactions at fixed prices, at prevailing market prices at the time
of sale, at varying prices determined at the time of sale, or at
negotiated prices. Such sales may be effected in transactions (which
may involve block transactions) (i) on any national securities exchange
or quotation service on which the Restricted Securities may be listed
or quoted at the time of sale, (ii) in the over-the-counter market,
(iii) in transactions otherwise than on such exchanges or services or
in the over-the-counter market, or (iv) through the writing of options.
In connection with sales of the Restricted Securities or otherwise, the
undersigned may enter into hedging transactions with broker-dealers,
which may in turn engage in short sales of the Restricted Securities,
short and deliver Restricted Securities to close out such short
positions, or loan or pledge Restricted Securities to broker-dealers
that in turn may sell such securities. The Selling Securityholder may
pledge or grant a security interest in some or all of the Restricted
Securities owned by it and, if it defaults in the performance of its
secured obligations, the pledgees or secured parties may offer and sell
the Restricted Securities from time to time pursuant to the Prospectus.
The Selling Securityholder also may transfer and donate shares in other
circumstances in which case the transferees, donees, pledgees or other
successors in interest will be the selling securityholder for purposes
of the Prospectus.
State any exceptions here:
-----------------------------------------------------------------------
-----------------------------------------------------------------------
-----------------------------------------------------------------------
Note: In no event may such method(s) of distribution take the form
of an underwritten offering of the Restricted Securities
without the prior agreement of the Company.
The undersigned acknowledges that it understands its obligation to
comply with the provisions of the Securities Exchange Act of 1934, as amended,
and the rules thereunder relating to stock manipulation, particularly Regulation
M thereunder (or any successor rules or regulations) and the provisions of the
Securities Act relating to Prospectus delivery, in connection with any offering
of Restricted Securities pursuant to the Shelf Registration Statement. The
undersigned agrees that neither it nor any person acting on its behalf will
engage in any transaction in violation of such provisions.
The Selling Securityholder hereby acknowledges its obligations under
the Registration Rights Agreement to indemnify and hold harmless certain persons
set forth therein.
A-5
Pursuant to the Registration Rights Agreement, the Company has agreed
under certain circumstances to indemnify the Selling Securityholders against
certain liabilities.
In accordance with the undersigned's obligation under the Registration
Rights Agreement to provide such information as may be required by law for
inclusion in the Shelf Registration Statement, the undersigned agrees to
promptly notify the Company of any inaccuracies or changes in the information
provided herein that may occur subsequent to the date hereof at any time while
the Shelf Registration Statement remains effective. All notices hereunder and
pursuant to the Registration Rights Agreement shall be made in writing at the
address set forth below.
By signing below, the undersigned consents to the disclosure of the
information contained herein in its answers to Items (1) through (6) above and
the inclusion of such information in the Shelf Registration Statement and the
related Prospectus. The undersigned understands that such information will be
relied upon by the Company in connection with the preparation, amendment or
supplement of the Shelf Registration Statement and the related Prospectus.
By signing below, the undersigned agrees that if the Company notifies
the undersigned of the happening of an event that requires the making of any
change in the Shelf Registration Statement or the Prospectus so that neither the
Shelf Registration Statement nor the Prospectus contains an untrue statement of
a material fact or omits 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, (i) the
undersigned will suspend the use of the Prospectus until the requisite change to
the Prospectus has been made, and (ii) that any such notification will be deemed
confidential and will be maintained in confidence, unless disclosure of such
notification is made in connection with a court proceeding or required by law,
or information regarding such notification becomes available to the public
generally or through a third party without an accompanying obligation of
confidentiality.
IN WITNESS WHEREOF, the undersigned, by authority duly given, has
caused this Notice and Questionnaire to be executed and delivered either in
person or by its duly authorized agent.
Beneficial Owner
By:
-------------------------------
Name:
Title:
Dated:
A-6
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE
AND QUESTIONNAIRE TO THE COMPANY:
XXXXXXXXXX TECHNOLOGY INCORPORATED
00 XXXX XXXXXXXX XXXX XXXXX X.X.
XXXXXXXXXX, XXXXXXXXX 00000-0000
FACSIMILE: (000) 000-0000
ATTENTION: XXXX X. XXXXXXXX
WITH A COPY TO:
FAEGRE & XXXXXX LLP
2200 XXXXX FARGO CENTER
00 XXXXX XXXXXXX XXXXXX
XXXXXXXXXXX, XXXXXXXXX 00000-0000
FACSIMILE: (000) 000-0000
ATTENTION: XXXXX XXXXX XXXXX
A-7
