EXHIBIT 10.6
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement"), is made as of
June 26, 2000, by and between Stratos Lightwave, Inc., a Delaware corporation
("Stratos") and Methode Electronics, Inc., a Delaware corporation ("Methode").
Capitalized terms used and not otherwise defined herein are defined in Article 1
of this Agreement.
RECITALS:
WHEREAS, Stratos and Methode have entered into that certain Master
Separation Agreement, dated as of May 28, 2000 (the "Master Separation
Agreement"), pursuant to which, among other things, Methode has contributed and
transferred to Stratos, all of the capital stock and equity interests held by
Methode in subsidiaries and other entities that conduct the Opto Business, and
all other assets and liabilities associated with such business, in exchange for
shares of Stratos common stock;
WHEREAS, Stratos and Methode are entering into an Initial Public
Offering and Distribution Agreement contemporaneously herewith (the "IPO and
Distribution Agreement"), pursuant to which, among other things, upon the
occurrence of certain events, Stratos will effect an initial public offering of
its Common Stock;
WHEREAS, Methode currently contemplates that, following such initial
public offering, Methode will distribute to the holders of Methode's common
stock by means of a pro rata distribution all of the shares of Stratos Common
Stock owned by Methode (the "Distribution"); and
WHEREAS, in connection with the foregoing transactions, Stratos has
agreed to provide Methode and its transferees with certain registration rights
if the Distribution does not occur, on the terms set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing, and the covenants
and agreements set forth in this Agreement, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
For purposes of this Agreement, the following terms shall have the
meanings ascribed to them below:
"AFFILIATE" of a Person means any Person controlling, controlled by or
under common control with that Person. "Control" for this purpose means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person, whether through the
ownership of voting securities or interests, by contract or otherwise.
"CERTIFICATE OF INCORPORATION" means the restated certificate of
incorporation of Stratos, as amended from time to time.
"COMMON STOCK" means the Common Stock, par value $.01 per share, of
Stratos and any equity securities issued or issuable with respect to the Common
Stock in connection with a reclassification, recapitalization, merger,
consolidation or other reorganization.
"COMMON STOCK EQUIVALENTS" means any securities convertible into, or
exercisable or exchangeable for, shares of Common Stock.
"DEMAND REGISTRATIONS", "DEMAND REGISTRATION REQUESTS" and "DEMAND
EXERCISE NOTICE" have the meanings set forth in Section 2.1(a)(i).
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EXPENSES" has the meaning set forth in Section 2.5(a).
"HOLDER" or "HOLDERS" means any party who is a signatory to this
Agreement and, subject to Section 4.6(a), any party who shall hereafter acquire
and hold Registrable Securities.
"INITIATING HOLDER" has the meaning set forth in Section 2.1(a)(i).
"IPO" means the initial public offering by Stratos of shares of Stratos
Common Stock pursuant to the IPO Registration Statement.
"IPO REGISTRATION STATEMENT" means the registration statement on Form
S-1, registration number 333-34864, filed by Stratos under the Securities Act,
pursuant to which the Stratos Common Stock to be issued in the IPO will be
registered, together with all amendments thereto.
"MAJOR HOLDER" means with respect to any registration the Holder that,
together with its Affiliates, includes the largest number of Registrable
Securities in such registration.
"NASD" means the National Association of Securities Dealers, Inc.
"OPTO BUSINESS" has the meaning set forth in the Master Separation
Agreement.
"PERSON" means any individual, corporation, limited liability company,
limited or general partnership, joint venture, association, joint-stock company,
trust, unincorporated organization, any other entity, or any government or any
department or agency or other unit thereof.
"REGISTRABLE SECURITIES" means any (i) shares of Common Stock held by
Methode, and (ii) shares of Common Stock issued or issuable, directly or
indirectly, with respect to the Common Stock referenced in clause (i) above by
way of stock dividend, stock split or combination of shares. As to any
particular Registrable Securities, such securities shall cease to be Registrable
Securities when: (A) a registration statement with respect to the sale of such
Registrable
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Securities shall have become effective under the Securities Act and such
Registrable Securities shall have been disposed of in accordance with such
registration statement; (B) such Registrable Securities shall have been sold to
the public pursuant to Rule 144 under the Securities Act (or any successor
provision); (C) such Registrable Securities shall have been otherwise
transferred, new certificates for them not bearing a legend restricting further
transfer shall have been delivered by Stratos and subsequent public distribution
of them shall not require registration or qualification of them under the
Securities Act or any similar state law then in force; or (D) such Registrable
Securities shall have ceased to be outstanding.
"REGISTRATION RIGHTS TRIGGER DATE" means the date Methode provides to
Stratos written notice, pursuant to Section 2.6 of the IPO and Distribution
Agreement, that Methode no longer intends to proceed with or complete the
Distribution.
"SEC" means the United States Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
ARTICLE 2
REGISTRATION RIGHTS
2.1. DEMAND REGISTRATIONS.
(a) (i) Subject to Sections 2.1(b) and 2.3 below, at any time and
from time to time after the Registration Rights Trigger Date, Methode shall have
the right to require Stratos to file a registration statement under the
Securities Act covering all or any part of its Registrable Securities, by
delivering a written request therefor to Stratos specifying the number of
Registrable Securities to be included in such registration by Methode and the
intended method of distribution thereof. All such requests by Methode pursuant
to this Section 2.1(a)(i) are referred to herein as "Demand Registration
Requests," and the registrations so requested are referred to herein as "Demand
Registrations" (with respect to any Demand Registration, the Holder making such
demand for registration being referred to as the "Initiating Holder"). As
promptly as practicable, but no later than ten (10) days after receipt of a
Demand Registration Request, Stratos shall give written notice (the "Demand
Exercise Notice") of such Demand Registration Request to all Holders of record
of Registrable Securities.
(ii) Stratos, subject to Sections 2.3 and 2.6, shall include
in a Demand Registration (x) the Registrable Securities of the Initiating Holder
and (y) the Registrable Securities of any other Holder which shall have made a
written request to Stratos for inclusion in such registration (which request
shall specify the maximum number of Registrable Securities intended to be
disposed of by such Holder) within thirty (30) days after the receipt of the
Demand Exercise Notice or, fifteen (15) days if, at the request of the
Initiating Holder or the Major Holder participating in such registration,
Stratos states in such written notice or gives telephonic notice to all Holders,
with written confirmation to follow promptly thereafter, that such registration
will be on a Form S-3).
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(iii) Stratos shall, as expeditiously as possible, use its best
efforts to (x) effect such registration under the Securities Act (including,
without limitation, by means of a shelf registration pursuant to Rule 415 under
the Securities Act if so requested and if Stratos is then eligible to use such a
registration) of the Registrable Securities which Stratos has been so requested
to register, for distribution in accordance with such intended method of
distribution, and (y) if requested by the Initiating Holder or the Major Holder
participating in such registration, obtain acceleration of the effective date of
the registration statement relating to such registration.
(b) The Demand Registration rights granted in Section 2.1(a) to the
Holders are subject to the following limitations: (i) such registration
statement must include shares of Common Stock representing, in the aggregate
(based on the Common Stock included in such registration by Methode and its
transferees), in excess of ten percent (10%) of the sum of (x) the amount of
shares of Registrable Securities held, in the aggregate, by Methode and its
transferees immediately prior to such registration PLUS (y) the amount of shares
of Common Stock obtainable upon the conversion of Common Stock Equivalents held,
in the aggregate, by Methode and its transferees immediately prior to such
registration; (ii) Stratos shall not be required to cause a registration
pursuant to Section 2.1(a)(i) to be declared effective within a period of one
hundred eighty (180) days after the effective date of any registration statement
of Stratos effected in connection with a Demand Registration Request; and (iii)
if the Board of Directors of Stratos, in its good faith judgment, determines
that any registration of Registrable Securities should not be made or continued
because it would materially interfere with any material financing, acquisition,
corporate reorganization or merger or other transaction involving Stratos or any
of its subsidiaries (a "Valid Business Reason"), (x) Stratos may postpone filing
a registration statement relating to a Demand Registration Request until such
Valid Business Reason no longer exists, but in no event for more than three (3)
months, and (y) in case a registration statement has been filed relating to a
Demand Registration Request, if the Valid Business Reason has not resulted from
actions taken by Stratos, Stratos may cause such registration statement to be
withdrawn and its effectiveness terminated or may postpone amending or
supplementing such registration statement until such Valid Business Reason no
longer exists, but in no event for more than three (3) months (such period of
postponement or withdrawal under subclauses (x) or (y) of this clause (iii), the
"Postponement Period"), and Stratos shall give written notice of its
determination to postpone or withdraw a registration statement and of the fact
that the Valid Business Reason for such postponement or withdrawal no longer
exists, in each case, promptly after the occurrence thereof; PROVIDED, HOWEVER,
Stratos shall not be permitted to postpone or withdraw a registration statement
after the expiration of any Postponement Period until twelve (12) months after
the expiration of such Postponement Period without Methode's prior written
approval.
If Stratos shall give any notice of postponement or withdrawal of any
registration statement, Stratos shall not, during the period of postponement or
withdrawal, register any Common Stock, other than pursuant to a registration
statement on Form S-4 or S-8 (or an equivalent registration form then in
effect). Each Holder of Registrable Securities agrees that, upon receipt of any
notice from Stratos that it has determined to withdraw any registration
statement pursuant to clause (iii) above, such Holder will discontinue its
disposition of Registrable Securities pursuant to such registration statement
and, if so directed by Stratos, will
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deliver to Stratos (at Stratos' expense) all copies, other than permanent file
copies, then in such Holder's possession of the prospectus covering such
Registrable Securities that was in effect at the time of receipt of such notice.
If Stratos shall have withdrawn or prematurely terminated a registration
statement filed under Section 2.1(a)(i) (whether pursuant to clause (iii) above
or as a result of any stop order, injunction or other order or requirement of
the SEC or any other governmental agency or court), Stratos shall not be
considered to have effected an effective registration for the purposes of this
Agreement until Stratos shall have filed a new registration statement covering
the Registrable Securities covered by the withdrawn registration statement and
such registration statement shall have been declared effective and shall not
have been withdrawn. If Stratos shall give any notice of withdrawal or
postponement of a registration statement, Stratos shall, at such time as the
Valid Business Reason that caused such withdrawal or postponement no longer
exists (but in no event later than three (3) months after the date of the
postponement or withdrawal), use its best efforts to effect the registration
under the Securities Act of the Registrable Securities covered by the withdrawn
or postponed registration statement in accordance with this Section 2.1 (unless
the Initiating Holder shall have withdrawn such request, in which case Stratos
shall not be considered to have effected an effective registration for the
purposes of this Agreement).
(c) Stratos, subject to Sections 2.3 and 2.6, may elect to include
in any registration statement and offering made pursuant to Section 2.1(a)(i),
(i) authorized but unissued shares of Common Stock or shares of Common Stock
held by Stratos as treasury shares and (ii) any other shares of Common Stock
that are requested to be included in such registration pursuant to the exercise
of piggyback rights granted by Stratos after the date hereof which are not
inconsistent with the rights granted in, or otherwise conflict with the terms
of, this Agreement ("Additional Piggyback Rights"); PROVIDED, HOWEVER, that such
inclusion shall be permitted only to the extent that it is pursuant to and
subject to the terms of the underwriting agreement or arrangements, if any,
entered into by the Initiating Holder.
(d) In connection with any Demand Registration, the Major Holder
participating in such registration shall have the right to designate the lead
managing underwriter, and subject to the next sentence, each other managing
underwriter for such registration; PROVIDED, HOWEVER, that each such other
managing underwriter is reasonably satisfactory to Stratos, it being understood
and agreed that any managing underwriter that participates in Stratos' IPO shall
be satisfactory to Stratos. Stratos shall have the right to designate one
managing underwriter other than the lead managing underwriter in any such
registration; PROVIDED, HOWEVER, that such other managing underwriter is
reasonably satisfactory to the Major Holder, it being understood and agreed that
any managing underwriter that participates in Stratos' IPO shall be satisfactory
to the Major Holder.
2.2. PIGGYBACK REGISTRATIONS.
(a) If, at any time after the Registration Rights Trigger Date,
Stratos proposes or is required to register any of its equity securities under
the Securities Act (other than pursuant to (i) registrations on such form or
similar form(s) solely for registration of securities in connection with an
employee benefit plan or dividend reinvestment plan or a merger or consolidation
or (ii)
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a Demand Registration under Section 2.1) on a registration statement on Form
S-1, Form S-2 or Form S-3 (or an equivalent general registration form then in
effect), whether or not for its own account, Stratos shall give prompt written
notice of its intention to do so to each of the Holders of record of Registrable
Securities. Upon the written request of any such Holder, made within twenty (20)
days following the receipt of any such written notice (which request shall
specify the maximum number of Registrable Securities intended to be disposed of
by such Holder and the intended method of distribution thereof), Stratos shall,
subject to Sections 2.2(b), 2.3 and 2.6 hereof, use its best efforts to cause
all such Registrable Securities, the Holders of which have so requested the
registration thereof, to be registered under the Securities Act (with the
securities that Stratos at the time proposes to register) to permit the sale or
other disposition by the Holders (in accordance with the intended method of
distribution thereof) of the Registrable Securities to be so registered. There
is no limitation on the number of such piggyback registrations pursuant to the
preceding sentence that Stratos is obligated to effect. No registration effected
under this Section 2.2(a) shall relieve Stratos of its obligations to effect
Demand Registrations.
(b) If, at any time after giving written notice of its intention
to register any equity securities and prior to the effective date of the
registration statement filed in connection with such registration, Stratos
determines for any reason not to register or to delay registration of such
equity securities, Stratos may, at its election, give written notice of such
determination to all Holders of record of Registrable Securities and (i) in the
case of a determination not to register, shall be relieved of its obligation to
register any Registrable Securities in connection with such abandoned
registration, without prejudice, however, to the rights of Holders under Section
2.1, and (ii) in the case of a determination to delay such registration of its
equity securities, shall be permitted to delay the registration of such
Registrable Securities for the same period as the delay in registering its
equity securities.
(c) Any Holder shall have the right to withdraw its request for
inclusion of its Registrable Securities in any registration statement pursuant
to this Section 2.2 by giving written notice to Stratos of its request to
withdraw; PROVIDED, HOWEVER, that (i) such request must be made in writing prior
to the earlier of the execution of the underwriting agreement or the execution
of the custody agreement with respect to such registration and (ii) such
withdrawal shall be irrevocable and, after making such withdrawal, a Holder
shall no longer have any right to include Registrable Securities in the
registration as to which such withdrawal was made.
2.3. ALLOCATION OF SECURITIES INCLUDED IN REGISTRATION STATEMENT.
(a) If any requested registration pursuant to Section 2.1 involves
an underwritten offering and the lead managing underwriter of such offering (the
"Manager") advises Stratos that, in its view, the number of securities requested
to be included in such registration by the Holders or any other persons
(including those shares of Common Stock requested by Stratos to be included in
such registration) exceeds the largest number (the "Section 2.1 Sale Number")
that can be sold in an orderly manner in such offering within a price range
acceptable to the Initiating Holder, Stratos shall include in such registration:
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(i) all Registrable Securities requested to be included in such
registration by Holders of Registrable Securities; PROVIDED,
HOWEVER, that, if the number of such Registrable Securities
exceeds the Section 2.1 Sale Number, the number of such
Registrable Securities (not to exceed the Section 2.1 Sale
Number) to be included in such registration shall be allocated on
a pro rata basis among all Holders requesting that Registrable
Securities be included in such registration, based on the number
of Registrable Securities then owned by each Holder requesting
inclusion in relation to the number of Registrable Securities
owned by all Holders requesting inclusion;
(ii) to the extent that the number of Registrable Securities to be
included by all Holders pursuant to clause (i) of this Section
2.3(a) is less than the Section 2.1 Sale Number, securities that
Stratos proposes to register subject to pro rata allocation as
described in Section 2.3(a)(i); and
(iii) to the extent that the number of Registrable Securities to be
included by all Holders and the number of securities to be
included by Stratos is less than the Section 2.1 Sale Number, any
other securities that the holders thereof propose to register
pursuant to the exercise of Additional Piggyback Rights subject
to pro rata allocation as described in Section 2.3(a)(i).
If, as a result of the proration provisions of this Section 2.3(a), any
Holder shall not be entitled to include all Registrable Securities in a
registration that such Holder has requested be included, such Holder may elect
to withdraw his request to include Registrable Securities in such registration
or may reduce the number requested to be included; PROVIDED, HOWEVER, that (x)
such request must be made in writing prior to the earlier of the execution of
the underwriting agreement or the execution of the custody agreement with
respect to such registration and (y) such withdrawal shall be irrevocable and,
after making such withdrawal, a Holder shall no longer have any right to include
Registrable Securities in the registration as to which such withdrawal was made.
(b) If any registration pursuant to Section 2.2 involves an
underwritten offering and the Manager shall advise Stratos that, in its view,
the number of securities requested to be included in such registration exceeds
the number (the "Section 2.2 Sale Number") that can be sold in an orderly manner
in such registration within a price range acceptable to Stratos, Stratos shall
include in such registration:
(i) all Common Stock or securities convertible into, or exchangeable
or exercisable for, Common Stock that Stratos proposes to
register for its own account (the "Company Securities");
(ii) to the extent that the number of Company Securities is less than
the Section 2.2 Sale Number, the remaining shares to be included
in such registration shall be allocated on a pro rata basis among
all Holders of Registrable Securities requesting that Registrable
Securities be included in such registration, based on
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the number of Registrable Securities then owned by each Holder
requesting inclusion in relation to the number of Registrable
Securities owned by all Holders requesting inclusion; and
(iii) to the extent the number of Company Securities plus the number of
Registrable Securities requested to be included by all Holders is
less than the Section 2.2 Sale Number, any other securities that
the holders thereof propose to register pursuant to the exercise
of Additional Piggyback Rights subject to pro rata allocation as
described in Section 2.3(a)(i).
2.4. REGISTRATION PROCEDURES. If and whenever Stratos is required
by the provisions of this Agreement to use its best efforts to effect or cause
the registration of any Registrable Securities under the Securities Act as
provided in this Agreement, Stratos shall, as expeditiously as possible:
(a) prepare and file with the SEC a registration statement on an
appropriate registration form of the SEC for the disposition of such Registrable
Securities in accordance with the intended method of disposition thereof, which
form (i) shall be selected by Stratos and (ii) shall, in the case of a shelf
registration, be available for the sale of the Registrable Securities by the
selling Holders thereof and such registration statement shall comply as to form
in all material respects with the requirements of the applicable form and
include all financial statements required by the SEC to be filed therewith, and
Stratos shall use its best efforts to cause such registration statement to
become and remain effective (PROVIDED, HOWEVER, that before filing a
registration statement or prospectus or any amendments or supplements thereto,
or comparable statements under securities or blue sky laws of any jurisdiction,
Stratos will furnish to one counsel for the Holders participating in the planned
offering (selected by the Initiating Holder, in the case of a registration
pursuant to Section 2.1, and selected by the Major Holder, in the case of a
registration pursuant to Section 2.2) and the underwriters, if any, copies of
all such documents proposed to be filed (including all exhibits thereto), which
documents will be subject to the reasonable review and reasonable comment of
such counsel, and Stratos shall not file any registration statement or amendment
thereto or any prospectus or supplement thereto to which the Holders of a
majority of the Registrable Securities covered by such registration statement or
the underwriters, if any, shall reasonably object in writing);
(b) prepare and file with the SEC such amendments and supplements
to such registration statement and the prospectus used in connection therewith
as may be necessary to keep such registration statement effective for such
period (which shall not be required to exceed one hundred eighty (180) days in
the case of a registration pursuant to Section 2.1 or one hundred twenty (120)
days in the case of a registration pursuant to Section 2.2) as any seller of
Registrable Securities pursuant to such registration statement shall request and
to comply with the provisions of the Securities Act with respect to the sale or
other disposition of all Registrable Securities covered by such registration
statement in accordance with the intended methods of disposition by the seller
or sellers thereof set forth in such registration statement;
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(c) furnish, without charge, to each seller of such Registrable
Securities and each underwriter, if any, of the securities covered by such
registration statement such number of copies of such registration statement,
each amendment and supplement thereto (in each case including all exhibits), and
the prospectus included in such registration statement (including each
preliminary prospectus) in conformity with the requirements of the Securities
Act, and other documents, as such seller and underwriter may reasonably request
in order to facilitate the public sale or other disposition of the Registrable
Securities owned by such seller (Stratos hereby consenting to the use in
accordance with all applicable law of each such registration statement (or
amendment or post-effective amendment thereto) and each such prospectus (or
preliminary prospectus or supplement thereto) by each such seller of Registrable
Securities and the underwriters, if any, in connection with the offering and
sale of the Registrable Securities covered by such registration statement or
prospectus);
(d) use its best efforts to register or qualify the Registrable
Securities covered by such registration statement under such other securities or
"blue sky" laws of such jurisdictions as any sellers of Registrable Securities
or any managing underwriter, if any, shall reasonably request, and do any and
all other acts and things which may be reasonably necessary or advisable to
enable such sellers or underwriter, if any, to consummate the disposition of the
Registrable Securities in such jurisdictions, except that in no event shall
Stratos be required to qualify to do business as a foreign corporation in any
jurisdiction where it would not, but for the requirements of this paragraph (d),
be required to be so qualified, to subject itself to taxation in any such
jurisdiction or to consent to general service of process in any such
jurisdiction;
(e) promptly notify each Holder selling Registrable Securities
covered by such registration statement and each managing underwriter, if any:
(i) when the registration statement, any pre-effective amendment, the prospectus
or any prospectus supplement related thereto or post-effective amendment to the
registration statement has been filed and, with respect to the registration
statement or any post-effective amendment, when the same has become effective;
(ii) of any request by the SEC or state securities authority for amendments or
supplements to the registration statement or the prospectus related thereto or
for additional information; (iii) of the issuance by the SEC of any stop order
suspending the effectiveness of the registration statement or the initiation of
any proceedings for that purpose; (iv) of the receipt by Stratos of any
notification with respect to the suspension of the qualification of any
Registrable Securities for sale under the securities or blue sky laws of any
jurisdiction or the initiation of any proceeding for such purpose; (v) of the
existence of any fact of which Stratos becomes aware which results in the
registration statement, the prospectus related thereto or any document
incorporated therein by reference containing an untrue statement of a material
fact or omitting to state a material fact required to be stated therein or
necessary to make any statement therein not misleading; and (vi) if at any time
the representations and warranties contemplated by any underwriting agreement,
securities sale agreement, or other similar agreement, relating to the offering
shall cease to be true and correct in all material respects; AND, if the
notification relates to an event described in clause (v), Stratos shall promptly
prepare and furnish to each such seller and each underwriter, if any, a
reasonable number of copies of a prospectus supplemented or amended so that, as
thereafter delivered to the purchasers of such Registrable Securities, such
prospectus shall not include an untrue statement of a material fact or omit to
state a material fact required to be stated
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therein or necessary to make the statements therein in the light of the
circumstances under which they were made not misleading;
(f) comply with all applicable rules and regulations of the SEC,
and make generally available to its security holders, as soon as reasonably
practicable after the effective date of the registration statement (and in any
event within seventeen (17) months thereafter), an earnings statement (which
need not be audited) covering the period of at least twelve (12) consecutive
months beginning with the first day of Stratos' first calendar quarter after the
effective date of the registration statement, which earnings statement shall
satisfy the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder;
(g) (i) cause all such Registrable Securities covered by such
registration statement to be listed on the principal trading market or
securities exchange on which similar securities issued by Stratos are then
listed (if any), if the listing of such Registrable Securities is then permitted
under the rules of such trading market or exchange, or
(ii) if no similar securities are then so listed, to either
cause all such Registrable Securities to be listed on a national securities
exchange or to secure designation of all such Registrable Securities as a Nasdaq
National Market "national market system security" within the meaning of Rule
11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market
authorization for such shares and, without limiting the generality of the
foregoing, take all actions that may be required by Stratos as the issuer of
such Registrable Securities in order to facilitate the managing underwriter's
arranging for the registration of at least two market makers as such with
respect to such shares with the NASD;
(h) provide and cause to be maintained a transfer agent and registrar
for all such Registrable Securities covered by such registration statement not
later than the effective date of such registration statement;
(i) enter into such customary agreements (including, if applicable,
an underwriting agreement) and take such other actions as the Holders of a
majority of the Registrable Securities or the Major Holder participating in such
offering shall reasonably request in order to expedite or facilitate the
disposition of such Registrable Securities. The Holders of the Registrable
Securities that are to be distributed by such underwriters shall be parties to
such underwriting agreement and may, at their option, require that Stratos make
to and for the benefit of such Holders the representations, warranties and
covenants of Stratos that are being made to and for the benefit of such
underwriters and that are of the type customarily provided to institutional
investors in secondary offerings;
(j) use its best efforts to obtain an opinion from Stratos' counsel
and a "cold comfort" letter from Stratos' independent public accountants in
customary form and covering such matters as are customarily covered by such
opinions and "cold comfort" letters delivered to underwriters in underwritten
public offerings, which opinion and letter shall be reasonably satisfactory to
the underwriter, if any, and to the Major Holder participating in such offering,
and furnish to each
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Holder participating in the offering and to each underwriter, if any, a copy of
such opinion and letter addressed to such Holder or underwriter;
(k) deliver promptly to each Holder participating in the offering and
each underwriter, if any, copies of all correspondence between the SEC and
Stratos, its counsel or auditors and all memoranda relating to discussions with
the SEC or its staff with respect to the registration statement, other than
those portions of any such memoranda which contain information subject to
attorney-client privilege with respect to Stratos, and, upon receipt of such
confidentiality agreements as Stratos may reasonably request, make reasonably
available for inspection by any seller of such Registrable Securities covered by
such registration statement, by any underwriter, if any, participating in any
disposition to be effected pursuant to such registration statement and by any
attorney, accountant or other agent retained by any such seller or any such
underwriter, all pertinent financial and other records, pertinent corporate
documents and properties of Stratos, and cause all of Stratos' officers,
directors and employees to supply all information reasonably requested by any
such seller, underwriter, attorney, accountant or agent in connection with such
registration statement;
(l) use its best efforts to obtain the withdrawal of any order
suspending the effectiveness of the registration statement;
(m) provide a CUSIP number for all Registrable Securities, not later
than the effective date of the registration statement;
(n) make reasonably available its employees and personnel and
otherwise provide reasonable assistance to the underwriters (taking into account
the needs of Stratos' businesses and the requirements of the marketing process)
in the marketing of Registrable Securities in any underwritten offering;
(o) promptly prior to the filing of any document that is to be
incorporated by reference into the registration statement or the prospectus
(after the initial filing of such registration statement), provide copies of
such document to counsel for the selling holders of Registrable Securities and
to each managing underwriter, if any, and make Stratos' representatives
reasonably available for discussion of such document and make such changes in
such document concerning the selling holders prior to the filing thereof as
counsel for such selling holders or underwriters may reasonably request;
(p) furnish to the Major Holder participating in the offering and
the managing underwriter, without charge, at least one (1) signed copy, and to
each other Holder participating in the offering, without charge, at least one
(1) photocopy of a signed copy, of the registration statement and any
post-effective amendments thereto, including financial statements and schedules,
all documents incorporated therein by reference and all exhibits (including
those incorporated by reference);
(q) cooperate with the selling Holders of Registrable Securities
and the managing underwriter, if any, to facilitate the timely preparation and
delivery of certificates not bearing any
- 11 -
restrictive legends representing the Registrable Securities to be sold, and
cause such Registrable Securities to be issued in such denominations and
registered in such names in accordance with the underwriting agreement prior to
any sale of Registrable Securities to the underwriters or, if not an
underwritten offering, in accordance with the instructions of the selling
Holders of Registrable Securities at least three (3) business days prior to any
sale of Registrable Securities and instruct any transfer agent and registrar of
Registrable Securities to release any stop transfer orders in respect thereof;
(r) take all such other commercially reasonable actions as are
necessary or advisable in order to expedite or facilitate the disposition of
such Registrable Securities; and
(s) take no direct or indirect action prohibited by Regulation M
under the Exchange Act; PROVIDED, HOWEVER, that to the extent that any
prohibition is applicable to Stratos, Stratos will take such action as is
necessary to make any such prohibition inapplicable.
Stratos may require as a condition precedent to Stratos' obligations
under this Section 2.4 that each seller of Registrable Securities as to which
any registration is being effected furnish Stratos such information regarding
such seller and the distribution of such securities as Stratos may from time to
time reasonably request; PROVIDED, HOWEVER, that such information is necessary
for Stratos to consummate such registration and shall be used only in connection
with such registration.
Each Holder of Registrable Securities agrees that upon receipt of any
notice from Stratos of the happening of any event of the kind described in
clause (v) of paragraph (e) of this Section 2.4, such Holder will discontinue
such Holder's disposition of Registrable Securities pursuant to the registration
statement covering such Registrable Securities until such Holder's receipt of
the copies of the supplemented or amended prospectus contemplated by paragraph
(e) of this Section 2.4 and, if so directed by Stratos, will deliver to Stratos
(at Stratos' expense) all copies, other than permanent file copies, then in such
Holder's possession of the prospectus covering such Registrable Securities that
was in effect at the time of receipt of such notice. In the event Stratos shall
give any such notice, the applicable period mentioned in paragraph (b) of this
Section 2.4 shall be extended by the number of days during such period from and
including the date of the giving of such notice to and including the date when
each seller of any Registrable Securities covered by such registration statement
shall have received the copies of the supplemented or amended prospectus
contemplated by paragraph (e) of this Section 2.4.
If any such registration statement or comparable statement under "blue
sky" laws refers to any Holder by name or otherwise as the Holder of any
securities of Stratos, then such Holder shall have the right to require (i) the
insertion therein of language, in form and substance reasonably satisfactory to
such Holder and Stratos, to the effect that the holding by such Holder of such
securities is not to be construed as a recommendation by such Holder of the
investment quality of Stratos' securities covered thereby and that such holding
does not imply that such Holder will assist in meeting any future financial
requirements of Stratos, or (ii) in the event that such reference to such Holder
by name or otherwise is not in the judgment of Stratos, as advised
- 12 -
by counsel, required by the Securities Act or any similar federal statute or any
state "blue sky" or securities law then in force, the deletion of the reference
to such Holder.
2.5. REGISTRATION EXPENSES.
(a) "Expenses" shall mean any and all fees and expenses incident to
Stratos' performance of or compliance with this Article 2, including, without
limitation: (i) SEC, stock exchange or NASD registration and filing fees and all
listing fees and fees with respect to the inclusion of securities in Nasdaq
National Market; (ii) fees and expenses of compliance with state securities or
"blue sky" laws and in connection with the preparation of a "blue sky" survey,
including, without limitation, reasonable fees and expenses of blue sky counsel;
(iii) printing and copying expenses; (iv) messenger and delivery expenses; (v)
expenses incurred in connection with any road show; (vi) fees and disbursements
of counsel for Stratos; (vii) with respect to each registration, the reasonable
fees and disbursements of one counsel for the selling Holder(s) (selected by the
Initiating Holder, in the case of a registration pursuant to Section 2.1, and
selected by the Major Holder, in the case of a registration pursuant to Section
2.2); (viii) fees and disbursements of all independent public accountants
(including the expenses of any audit and/or "cold comfort" letter) and fees and
expenses of other persons, including special experts, retained by Stratos; (ix)
fees and expenses payable to a Qualified Independent Underwriter (as such term
is defined in Schedule E to the By-Laws of the NASD), if any; and (x) any other
fees and disbursements of underwriters, if any, customarily paid by issuers or
sellers of securities.
(b) Stratos shall pay all Expenses with respect to any Demand
Registration pursuant to Section 2.1 and any piggyback registrations pursuant to
Section 2.2.
(c) Notwithstanding the foregoing: (i) the provisions of this
Section 2.5 shall be deemed amended to the extent necessary to cause these
expense provisions to comply with "blue sky" laws of each state in which the
offering is made; (ii) in connection with any registration hereunder, each
Holder of Registrable Securities being registered shall pay all underwriting
discounts and commissions and any transfer taxes, if any, attributable to the
sale of such Registrable Securities, pro rata with respect to payments of
discounts and commissions in accordance with the number of shares sold in the
offering by such Holder; (iii) Stratos shall, in the case of all registrations
under this Article 2, be responsible for all its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties).
2.6. CERTAIN LIMITATIONS ON REGISTRATION RIGHTS. In the case of any
registration under Section 2.1 pursuant to an underwritten offering, or in the
case of a registration under Section 2.2 if Stratos has determined to enter into
an underwriting agreement in connection therewith, all securities to be included
in such registration shall be subject to an underwriting agreement and no person
may participate in such registration unless such person agrees to sell such
person's securities on the basis provided therein and completes and executes all
reasonable questionnaires, and other documents (including custody agreements and
powers of attorney) that must be executed in connection therewith, and provides
such other information to Stratos or the underwriter as may be necessary to
register such Person's securities.
- 13 -
2.7. LIMITATIONS ON SALE OR DISTRIBUTION OF OTHER SECURITIES.
(a) Each Holder of Registrable Securities agrees, (i) to the extent
requested in writing by a managing underwriter, if any, of any registration
effected pursuant to Section 2.1 or 2.2, not to sell, transfer or otherwise
dispose of, including any sale pursuant to Rule 144 under the Securities Act,
any Common Stock, or any other equity security of Stratos or any security
convertible into or exchangeable or exercisable for any equity security of
Stratos (other than as part of such underwritten public offering) during the
time period reasonably requested by the managing underwriter, not to exceed one
hundred eighty (180) days (and Stratos hereby also so agrees (except that
Stratos may effect any sale or distribution of any such securities pursuant to a
registration on Form S-4 (if reasonably acceptable to such managing underwriter)
or Form S-8, or any successor or similar form which is then in effect or upon
the conversion, exchange or exercise of any then outstanding Common Stock
Equivalent or otherwise pursuant to any employee benefit arrangements) to use
its reasonable best efforts to cause each holder of any equity security or any
security convertible into or exchangeable or exercisable for any equity security
of Stratos purchased from Stratos at any time other than in a public offering so
to agree), and (ii) to the extent requested in writing by a managing underwriter
of any underwritten public offering effected by Stratos for its own account, it
will not sell any Common Stock (other than as part of such underwritten public
offering) during the time period reasonably requested by the managing
underwriter, which period shall not exceed ninety (90) days.
(b) Stratos hereby agrees that, if it shall previously have received
a request for registration (other than a shelf registration) pursuant to Section
2.1 or 2.2, and if such previous registration shall not have been withdrawn or
abandoned, Stratos shall not sell, transfer, or otherwise dispose of, any Common
Stock, or any other equity security of Stratos or any security convertible into
or exchangeable or exercisable for any equity security of Stratos (other than as
part of such underwritten public offering, a registration on Form S-4 or Form
S-8 or any successor or similar form which is then in effect or upon the
conversion, exchange or exercise of any then outstanding Common Stock Equivalent
or otherwise pursuant to any employee benefit arrangements), until a period of
ninety (90) days shall have elapsed from the effective date of such previous
registration; and Stratos shall so provide in any registration rights agreements
hereafter entered into with respect to any of its securities.
2.8. NO REQUIRED SALE. Nothing in this Agreement shall be deemed to
create an independent obligation on the part of any Holder to sell any
Registrable Securities pursuant to any effective registration statement.
2.9. INDEMNIFICATION.
(a) In the event of any registration of any securities of Stratos
under the Securities Act pursuant to this Article 2, Stratos will, and hereby
does, indemnify and hold harmless, to the fullest extent permitted by law, each
Holder of Registrable Securities, its directors, officers, fiduciaries,
employees and stockholders or general and limited partners (and the directors,
officers, employees and stockholders thereof), each other Person who
participates as an underwriter or a Qualified Independent Underwriter, if any,
in the offering or sale of such
- 14 -
securities, each officer, director, employee, stockholder, fiduciary, managing
director, agent, affiliates, consultants, representatives, successors, assigns
or partner of such underwriter or Qualified Independent Underwriter, and each
other Person, if any, who controls such seller or any such underwriter within
the meaning of the Securities Act, against any and all losses, claims, damages
or liabilities, joint or several, actions or proceedings (whether commenced or
threatened) and expenses (including reasonable fees of counsel and any amounts
paid in any settlement effected with Stratos' consent, which consent shall not
be unreasonably withheld or delayed) to which each such indemnified party may
become subject under the Securities Act or otherwise in respect thereof
(collectively, "Claims"), and Stratos will reimburse any such indemnified party
for any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such Claim as such expenses are
incurred, insofar as such Claims arise out of or are based upon: (i) any untrue
statement or alleged untrue statement of a material fact contained in any
registration statement under which such securities were registered under the
Securities Act or 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; (ii) any untrue statement or alleged untrue statement of a
material fact contained in any preliminary, final or summary prospectus or any
amendment or supplement thereto, together with the documents incorporated by
reference therein, or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; or (iii) any violation by Stratos of any federal, state or
common law rule or regulation applicable to Stratos and relating to action
required of or inaction by Stratos in connection with any such registration;
PROVIDED, HOWEVER, that Stratos shall not be liable to any such indemnified
party in any such case to the extent such Claim arises out of or is based upon
any untrue statement or alleged untrue statement of a material fact or omission
or alleged omission of a material fact made in such registration statement or
amendment thereof or supplement thereto or in any such prospectus or any
preliminary, final or summary prospectus in reliance upon and in conformity with
written information furnished to Stratos by or on behalf of such indemnified
party specifically for use therein. Such indemnity and reimbursement of expenses
shall remain in full force and effect regardless of any investigation made by us
on behalf of such indemnified party and shall survive the transfer of such
securities by such seller.
(b) Each Holder of Registrable Securities that are included in the
securities as to which any registration under Section 2.1 or 2.2 is being
effected (and, if Stratos requires as a condition to including any Registrable
Securities in any registration statement filed in accordance with Section 2.1 or
2.2, any underwriter and Qualified Independent Underwriter, if any) shall,
severally and not jointly, indemnify and hold harmless (in the same manner and
to the same extent as set forth in paragraph (a) of this Section 2.9) to the
extent permitted by law Stratos, its officers and directors, each Person
controlling Stratos within the meaning of the Securities Act and all other
prospective sellers and their respective directors, officers, fiduciaries,
managing directors, employees, agents, affiliates, consultants, representatives,
successors, assigns, general and limited partners, stockholders and respective
controlling Persons with respect to any untrue statement or alleged untrue
statement of any material fact in, or omission or alleged omission of any
material fact from, such registration statement, any preliminary, final or
summary prospectus contained therein, or any amendment or supplement thereto, if
such statement or alleged
- 15 -
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to Stratos or its representatives
by or on behalf of such Holder or underwriter or Qualified Independent
Underwriter, if any, specifically for use therein and reimburse such indemnified
party for any legal or other expenses reasonably incurred in connection with
investigating or defending any such Claim as such expenses are incurred;
provided, however, that the aggregate amount which any such Holder shall be
required to pay pursuant to this Section 2.9(b) and Sections 2.9(c) and (e)
shall in no case be greater than the amount of the net proceeds received by such
person upon the sale of the Registrable Securities pursuant to the registration
statement giving rise to such claim. Such indemnity and reimbursement of
expenses shall remain in full force and effect regardless of any investigation
made by or on behalf of such indemnified party and shall survive the transfer of
such securities by such Holder.
(c) Indemnification similar to that specified in the preceding
paragraphs (a) and (b) of this Section 2.9 (with appropriate modifications)
shall be given by Stratos and each seller of Registrable Securities with respect
to any required registration or other qualification of securities under any
state securities and "blue sky" laws.
(d) Any person entitled to indemnification under this Agreement
shall notify promptly the indemnifying party in writing of the commencement of
any action or proceeding with respect to which a claim for indemnification may
be made pursuant to this Section 2.9, but the failure of any indemnified party
to provide such notice shall not relieve the indemnifying party of its
obligations under the preceding paragraphs of this Section 2.9, except to the
extent the indemnifying party is materially prejudiced thereby and shall not
relieve the indemnifying party from any liability which it may have to any
indemnified party otherwise than under this Article 2. In case any action or
proceeding is brought against an indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, unless a conflict of interest between such
indemnified and indemnifying parties may exist in respect of such claim, to
assume the defense thereof jointly with any other indemnifying party similarly
notified, to the extent that it chooses, with counsel reasonably satisfactory to
such indemnified party, and after notice from the indemnifying party to such
indemnified party that it so chooses, the indemnifying party shall not be liable
to such indemnified party for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation; PROVIDED, HOWEVER, that: (i) if the
indemnifying party fails to take reasonable steps necessary to defend diligently
the action or proceeding within twenty (20) days after receiving notice from
such indemnified party that the indemnified party believes it has failed to do
so; (ii) if such indemnified party who is a defendant in any action or
proceeding that is also brought against the indemnifying party reasonably shall
have concluded that there may be one or more legal defenses available to such
indemnified party which are not available to the indemnifying party; or (iii) if
representation of both parties by the same counsel is otherwise inappropriate
under applicable standards of professional conduct; then, in any such case, the
indemnified party shall have the right to assume or continue its own defense as
set forth above (but with no more than one (1) firm of counsel for all
indemnified parties in each jurisdiction, except to the extent any indemnified
party or parties reasonably shall have concluded that there may be legal
defenses
- 16 -
available to such party or parties which are not available to the other
indemnified parties or to the extent representation of all indemnified parties
by the same counsel is otherwise inappropriate under applicable standards of
professional conduct) and the indemnifying party shall be liable for any
expenses therefor. No indemnifying party shall, without the written consent of
the indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim
in respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (A) includes an
unconditional release of the indemnified party from all liability arising out of
such action or claim and (B) does not include a statement as to or an admission
of fault, culpability or a failure to act, by or on behalf of any indemnified
party.
(e) If for any reason the foregoing indemnity is unavailable or is
insufficient to hold harmless an indemnified party under Sections 2.9(a), (b) or
(c), then each indemnifying party shall contribute to the amount paid or payable
by such indemnified party as a result of any Claim in such proportion as is
appropriate to reflect the relative fault of the indemnifying party, on the one
hand, and the indemnified party, on the other hand, with respect to such
offering of securities. The relative fault 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 indemnifying party or the indemnified party and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. If, however, the
allocation provided in the second preceding sentence is not permitted by
applicable law, then each indemnifying party shall contribute to the amount paid
or payable by such indemnified party in such proportion as is appropriate to
reflect not only such relative faults but also the relative benefits of the
indemnifying party and the indemnified party as well as any other relevant
equitable considerations. The parties hereto agree that it would not be just and
equitable if contributions pursuant to this Section 2.9(e) were to be determined
by pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in the preceding sentences
of this Section 2.9(e). The amount paid or payable in respect of any Claim shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such Claim.
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. Notwithstanding
anything in this Section 2.9(e) to the contrary, no indemnifying party (other
than Stratos) shall be required pursuant to this Section 2.9(e) to contribute
any amount in excess of the net proceeds received by such indemnifying party
from the sale of Registrable Securities in the offering to which the losses,
claims, damages or liabilities of the indemnified parties relate, less the
amount of any indemnification payment made by such indemnifying party pursuant
to Sections 2.9(b) and (c).
(f) The indemnity agreements contained herein shall be in addition
to any other rights to indemnification or contribution which any indemnified
party may have pursuant to law or contract and shall remain operative and in
full force and effect regardless of any investigation
- 17 -
made or omitted by or on behalf of any indemnified party and shall survive the
transfer of the Registrable Securities by any such party.
(g) The indemnification and contribution required by this Section 2.9
shall be made by periodic payments of the amount thereof during the course of
the investigation or defense, as and when bills are received or expense, loss,
damage or liability is incurred.
2.10 BLACKOUT PERIODS FOR SHELF REGISTRATIONS.
(a) At any time when a shelf registration effected pursuant to
Article 2 relating to the Registrable Securities is effective, upon written
notice from Stratos to the Holders participating in the registration that
Stratos determines in the good faith judgment of the Board of Directors of
Stratos that such Holders' sale of the Registrable Securities pursuant to the
shelf registration would require disclosure of material information which
Stratos has a bona fide business purpose for preserving as confidential and the
disclosure of which would have a material adverse effect on Stratos or Stratos
is unable to comply with SEC requirements (an "Information Blackout"), such
Holders shall suspend sales of the Registrable Securities pursuant to such shelf
registration until the earlier of: (i) the date upon which such material
information is disclosed to the public or ceases to be material; (ii) ninety
(90) days after the Board of Directors of Stratos makes such good faith
determination; or (iii) such time as Stratos notifies Holders that sales
pursuant to such shelf registration may be resumed (the number of days from such
suspension of sales of the Holders until the day when such sales may be resumed
hereunder is hereinafter called a "Sales Blackout Period").
(b) If there is an Information Blackout and the Holders do not notify
Stratos in writing of their desire to cancel such shelf registration, the period
set forth in Section 2.4(b) shall be extended for a number of days equal to the
number of days in the Sales Blackout Period.
ARTICLE 3
UNDERWRITTEN OFFERINGS
3.1. REQUESTED UNDERWRITTEN OFFERINGS. If requested by the
underwriters for any underwritten offering by the Holders pursuant to a
registration requested under Section 2.1, Stratos shall enter into a customary
underwriting agreement with the underwriters. Such underwriting agreement shall
be satisfactory in form and substance to the Initiating Holder and shall contain
such representations and warranties by, and such other agreements on the part
of, Stratos and such other terms as are generally prevailing in agreements of
that type, including, without limitation, indemnities and contribution
agreements on substantially the same terms as those contained herein or as
otherwise reasonably requested by the underwriters. Any Holder participating in
the offering shall be a party to such underwriting agreement and may, at its
option, require that any or all of the representations and warranties by, and
the other agreements on the part of, Stratos to and for the benefit of such
underwriters shall also be made to and for the benefit of such Holder and that
any or all of the conditions precedent to the obligations of such underwriters
under such underwriting agreement be conditions precedent to the obligations of
such Holder; PROVIDED, HOWEVER, that Stratos shall not be required to make any
representations or
- 18 -
warranties with respect to written information specifically provided by a
selling Holder for inclusion in the registration statement. Such underwriting
agreement shall also contain such representations and warranties by the
participating Holders with respect to title and ownership of shares as are
customary in agreements of that type.
3.2. PIGGYBACK UNDERWRITTEN OFFERINGS. In the case of a registration
pursuant to Section 2.2 hereof, if Stratos shall have determined to enter into
an underwriting agreement in connection therewith, all of the Holders'
Registrable Securities to be included in such registration shall be subject to
such underwriting agreement. Any Holder participating in such registration may,
at its option, require that any or all of the representations and warranties by,
and the other agreements on the part of, Stratos to and for the benefit of such
underwriters shall also be made to and for the benefit of such Holder and that
any or all of the conditions precedent to the obligations of such underwriters
under such underwriting agreement be conditions precedent to the obligations of
such Holder. Such underwriting agreement shall also contain such representations
and warranties by the participating Holders as are customary in agreements of
that type, on substantially the same terms as those contained herein and such
other terms as may be reasonably requested by the underwriters.
ARTICLE 4
GENERAL
4.1. ADJUSTMENTS AFFECTING REGISTRABLE SECURITIES. Stratos agrees that
it shall not effect or permit to occur any combination or subdivision of shares
which would adversely affect the ability of the Holder of any Registrable
Securities to include such Registrable Securities in any registration
contemplated by this Agreement or the marketability of such Registrable
Securities in any such registration. Stratos agrees that it will take all
reasonable steps necessary to effect a subdivision of shares if in the
reasonable judgment of (i) the Initiating Holder of a Demand Registration
Request or (ii) the managing underwriter for the offering in respect of such
Demand Registration Request, such subdivision would enhance the marketability of
the Registrable Securities.
4.2. RULE 144. Stratos covenants that (i) so long as it remains
subject to the reporting provisions of the Exchange Act, it will timely file the
reports required to be filed by it under the Securities Act or the Exchange Act
(including, but not limited to, the reports under Sections 13 and 15(d) of the
Exchange Act referred to in subparagraph (c)(1) of Rule 144 under the Securities
Act), and (ii) will take such further action as any Holder of Registrable
Securities may reasonably request, all to the extent required from time to time
to enable such Holder to sell Registrable Securities without registration under
the Securities Act within the limitation of the exemptions provided by (A) Rule
144 under the Securities Act, as such Rule may be amended from time to time, or
(B) any similar rule or regulation hereafter adopted by the SEC. Upon the
request of any Holder of Registrable Securities, Stratos will deliver to such
Holder a written statement as to whether it has complied with such requirements.
4.3. NOMINEES FOR BENEFICIAL OWNERS. If Registrable Securities are
held by a nominee for the beneficial owner thereof, the beneficial owner thereof
may, at its option, be treated as the
- 19 -
Holder of such Registrable Securities for purposes of any request or other
action by any Holder or Holders of Registrable Securities pursuant to this
Agreement (or any determination of any number or percentage of shares
constituting Registrable Securities held by any Holder or Holders of Registrable
Securities contemplated by this Agreement); PROVIDED, HOWEVER, that Stratos
shall have received assurances reasonably satisfactory to it of such beneficial
ownership.
4.4 AMENDMENTS AND WAIVERS. This Agreement may not be modified or
amended, or any of the provisions hereof waived (temporarily or permanently),
except by a written agreement or consent signed by both of the parties hereto.
4.5. NOTICES. Except as otherwise provided in this Agreement, all
notices, requests, consents and other communications hereunder to any party
shall be delivered in person, by telecopy (with a confirmatory copy sent by a
different means within three (3) business days of such notice), by express or
overnight mail delivered by a nationally recognized air courier, or by
registered or certified mail (return receipt requested, postage prepaid)
addressed to such party at the address set forth below or such other address as
may hereafter be designated in writing by such party to the other parties:
If to Stratos: Stratos Lightwave, Inc.
0000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Chief Executive Officer
Telecopy No.: (000) 000-0000
If to Methode: Methode Electronics, Inc.
0000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Chief Executive Officer
All such notices, requests, consents and other communications shall be deemed to
have been given when received.
4.6. MISCELLANEOUS.
(a) This Agreement shall be binding upon and inure to the benefit of
and be enforceable by the parties hereto and the respective successors, personal
representatives and assigns of the parties hereto, whether so expressed or not.
If any Person shall acquire Registrable Securities from any Holder, in any
manner, whether by operation of law or otherwise, such transferee shall promptly
notify Stratos and such Registrable Securities acquired from such Holder shall
be held subject to all of the terms of this Agreement, and by taking and holding
such Registrable Securities such Person shall be entitled to receive the
benefits of and be conclusively deemed to have agreed to be bound by and to
perform all of the terms and provisions of this Agreement. If Stratos shall so
request, any such successor or assign shall agree in writing to acquire and hold
the Registrable Securities acquired from such Holder subject to all of the terms
- 20 -
hereof. If any Holder shall acquire additional Registrable Securities, such
Registrable Securities shall be subject to all of the terms, and entitled to all
the benefits, of this Agreement.
(b) This Agreement (with the documents referred to herein or
delivered pursuant hereto) embodies the entire agreement and understanding
between the parties hereto and supersedes all prior agreements and
understandings relating to the subject matter hereof.
(c) This Agreement shall be construed and enforced in accordance with
and governed by the laws of the State of Illinois, without regard to conflicts
of laws principles.
(d) The headings in this Agreement are for convenience of reference
only and shall not limit or otherwise affect the meaning hereof. All article and
section references are to this Agreement unless otherwise expressly provided.
(e) This Agreement may be executed in any number of counterparts,
each of which shall be an original, but all of which together shall constitute
one instrument.
(f) Any term or provision of this Agreement which is invalid or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such invalidity or unenforceability without rendering invalid
or unenforceable the remaining terms and provisions of this Agreement or
affecting the validity or enforceability of any of the terms or provisions of
this Agreement in any other jurisdiction.
(g) The parties hereto acknowledge that there would be no adequate
remedy at law if any party fails to perform any of its obligations hereunder,
and accordingly agree that each party, in addition to any other remedy to which
it may be entitled at law or in equity, shall be entitled to injunctive relief,
including specific performance, to enforce such obligations without the posting
of any bond, and, if any action should be brought in equity to enforce any of
the provisions of this Agreement, none of the parties hereto shall raise the
defense that there is an adequate remedy at law.
(h) Each party hereto shall do and perform or cause to be done and
performed all such further acts and things and shall execute and deliver all
such other agreements, certificates, instruments, and documents as any other
party hereto reasonably may request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
4.7. PRIOR AGREEMENTS. Each of the Holders and Stratos hereby agrees
that any agreement previously entered into by it pursuant to which Stratos
granted to it any registration rights shall be superseded by this Agreement and
each such agreement (and any rights such Holder has pursuant to such agreement)
shall be terminated, null and void and no longer in effect.
4.8. NO INCONSISTENT AGREEMENTS. The rights granted to the holders of
Registrable Securities hereunder do not in any way conflict with and are not
inconsistent with any other
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agreements to which Stratos is a party or by which it is bound. Without
Methode's prior written consent, neither Stratos nor any Holder will, on or
after the date of this Agreement, enter into any agreement with respect to its
securities which is inconsistent with the rights granted in this Agreement or
otherwise conflicts with the provisions hereof, other than any lock-up agreement
with the underwriters in connection with any registered offering effected
hereunder, pursuant to which Stratos shall agree not to register for sale, and
Stratos shall agree not to sell or otherwise dispose of, Common Stock or any
securities convertible into or exercisable or exchangeable for Common Stock, for
a specified period following the registered offering. Stratos further agrees
that if any other registration rights agreement entered into after the date of
this Agreement with respect to any of its securities contains terms which are
more favorable to, or less restrictive on, the other party thereto than the
terms and conditions contained in this Agreement are (insofar as they are
applicable) to Methode, then the terms and conditions of this Agreement shall
immediately be deemed to have been amended without further action by Stratos or
any of the holders of Registrable Securities so that Methode shall be entitled
to the benefit of any such more favorable or less restrictive terms or
conditions.
4.9 TERMINATION. This Agreement shall terminate and have no further
force or effect as of the date of the completion of the Distribution.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
STRATOS LIGHTWAVE, INC.
By: /s/ Xxxxx X. XxXxxxxx
------------------------------------------
Xxxxx X. XxXxxxxx
President and Chief Executive Officer
METHODE ELECTRONICS, INC.
By: /s/ Xxxxxxx X. XxXxxxxx
------------------------------------------
Xxxxxxx X. XxXxxxxx
Chairman
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