EXHIBIT 4.4
REGISTRATION RIGHTS AGREEMENT
Between
Artesyn Technologies, Inc.
and
Finestar International Limited
Dated as of January 15, 2002
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of January
15, 2002, by and between ARTESYN TECHNOLOGIES, INC., a Florida corporation (the
"Company"), and FINESTAR INTERNATIONAL LIMITED, a British Virgin Islands
corporation (the "Purchaser").
RECITAL
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In order to induce the Purchaser to enter into the Securities Purchase
Agreement of even date herewith between the Company and the Purchaser (the
"Purchase Agreement"), the Company has agreed to provide the registration rights
provided for in this Agreement. The execution of this Agreement is a condition
to the closing of the transactions contemplated by the Purchase Agreement.
The parties hereby agree as follows:
1. Certain Definitions. For purposes of this Registration Rights
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Agreement, the following terms shall have the following respective meanings:
(a) "Commission" shall mean the Securities and Exchange Commission,
or any other federal agency at the time administering the Exchange Act or the
Securities Act, whichever is the relevant statute for the particular purpose.
(b) "Common Stock" shall mean the common stock of the Company, par
value $0.01, or any other capital stock of the Company into which such stock is
reclassified or reconstituted.
(c) "Convertible Notes" shall mean the Convertible Subordinated Note
of the Company to be issued and sold to the Purchaser pursuant to the Purchase
Agreement and any convertible note issued in exchange therefor or in lieu
thereof.
(d) "Demand Managing Underwriter" shall have the meaning assigned
thereto in Section 5(d) hereof.
(e) "Demand Registrable Securities" shall have the meaning assigned
thereto in Section 3 hereof.
(f) "Demand Registration Statement" shall have the meaning assigned
thereto in Section 3 hereof.
(g) "Demand Request" shall have the meaning assigned thereto in
Section 3 hereof.
(h) "Effective Failure" shall have the meaning assigned thereto in
Section 9(b) hereof.
(i) "Exchange Act" shall mean the Securities Exchange Act of 1934, or
any successor thereto, as the same shall be amended from time to time.
(j) "Non-Exclusive Remedy" shall have the meaning assigned thereto in
Section 9(a).
(k) The term "person" shall mean a corporation, association,
partnership, organization, business, individual, government or political
subdivision thereof or governmental agency.
(l) "Piggyback Market Cut-Back" shall have the meaning assigned
thereto in Section 4 hereof.
(m) "Piggyback Registrable Securities" shall have the meaning
assigned thereto in Section 4 hereof.
(n) "Piggyback Registration Statement" shall have the meaning
assigned thereto in Section 4 hereof.
(o) "Piggyback Request" shall have the meaning assigned thereto in
Section 4 hereof.
(p) "Piggyback Underwriting Agreement" shall have the meaning
assigned thereto in Section 4 hereof.
(q) "Purchase Agreement" means the Securities Purchase Agreement of
even date herewith between the Company and the Purchaser.
(r) "Registration Default" shall have the meaning assigned thereto in
Section 9(a) hereof.
(s) "Registrable Securities" means the Shares and any securities
issued in respect of the foregoing as a result of any stock split, stock
dividend, recapitalization or similar transaction.
(t) "Registration Expenses" shall have the meaning assigned thereto
in Section 6 hereof.
(u) "Securities Act" shall mean the Securities Act of 1933, or any
successor thereto, as the same shall be amended from time to time.
(v) "Shares" means the shares of Common Stock issued or issuable upon
conversion or exercise of the Convertible Notes or Warrants, respectively, and
any shares of Common Stock issued as a result of interest payments under the
Convertible Notes.
(w) "Shelf Registration Statement" shall have the meaning assigned
thereto in Section 2 hereof.
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(x) "Suspension Condition" shall have the meaning assigned thereto in
Section 5(e) hereof.
(y) "Warrants" means the warrants to be issued and sold to the
Purchaser pursuant to the Purchase Agreement and any warrant issued in exchange
therefore or in lieu thereof.
In addition, capitalized terms not defined herein shall have the meaning
ascribed thereto in the Convertible Notes.
2. Shelf Registration Statement. Not later than February 4, 2002, the
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Company shall file under the Securities Act a "shelf" registration statement
providing for the registration of, and the sale on a continuous or delayed basis
by the Purchaser, of Registrable Securities pursuant to Rule 415 under the
Securities Act and/or any similar rule that may be adopted by the Commission.
The Company agrees to use its best efforts to cause such "shelf" registration
statement to become or be declared effective as soon as practicable. The Company
shall provide copies of all correspondence to, and from, the Commission within
twenty-four (24) hours after receipt, or delivery, as the case may be, of any
such correspondence. The Company shall subsequently file additional "shelf"
registration statements as necessary and use its best efforts to provide for the
continuous effectiveness of a "shelf" registration statement registering the
Registrable Securities in accordance with the other applicable provisions herein
and to the extent provided thereof (collectively, all such "shelf" registration
statements are the "Shelf Registration Statement").
3. Demand Registration. If at any time prior to the fifth anniversary of
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the date of this Agreement the Company shall receive from the Purchaser a
written request (a "Demand Request") that the Company register on Form S-3 (or
on Form S-1 if Form S-3 is not available to the Company) under the Securities
Act (or if such form is not available, any registration statement form then
available to the Company) Registrable Securities, then the Company shall prepare
and file with the Commission as soon as practicable, but in no event later than
forty-five (45) days after receipt of such Demand Request, a registration
statement (a "Demand Registration Statement") to effect such registration. The
Company shall use its best efforts to cause the Registrable Securities specified
in such Demand Request (the "Demand Registrable Securities") to become or be
declared effective as soon as practicable. The Company shall provide copies of
all correspondence to, and from, the Commission within twenty-four (24) hours
after receipt, or delivery, as the case may be, of any such correspondence. Each
such Demand Request shall: (a) include an initial request to register
Registrable Securities having an aggregate offering value of not less than $10
million; (b) specify the number of Demand Registrable Securities intended to be
offered and sold by the Purchaser pursuant thereto; (c) express the present
intention of the Purchaser to offer or cause the offering of such Demand
Registrable Securities pursuant to such Demand Registration Statement, (d)
describe the nature or method of distribution of such Demand Registrable
Securities pursuant to such Demand Registration Statement (including, in
particular, whether the Purchaser plans to effect such distribution by means of
an underwritten offering); (e) identify the proposed Demand Managing
Underwriter, if any; and (f) contain the undertaking of the Purchaser
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to provide all such information and materials and take all such actions as may
be required in order to permit the Company to comply with all applicable
requirements of the Securities Act, the Exchange Act and the rules and
Regulations of the Commission thereunder, and to obtain any desired acceleration
of the effective date of such Demand Registration Statement.
4. Piggyback Registration.
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(a) If at any time prior to the fifth anniversary of the date of this
Agreement the Company shall determine to register any of its securities, whether
for sale for its own account or for the account of any other Person, other than
registration statements relating to (i) employee, consultant or distributor
compensation or incentive arrangements, including employee benefit plans, or
(ii) acquisitions or any transaction or transactions under Rule 145 under the
Securities Act or any successor rule with similar effect, then the Company will
promptly give the Purchaser written notice thereof and include in such
registration statement (a "Piggyback Registration Statement") and in any
underwriting involved therein, all Registrable Securities (the "Piggyback
Registrable Securities") specified in a written request made by the Purchaser (a
"Piggyback Request") within 10 (ten) business days (or such later time as the
underwriters may allow in writing) after receipt of such written notice from the
Company.
(b) If the Piggyback Registration Statement of which the Company
gives notice is for an underwritten offering or the Company proposes to do an
underwritten take down from an unallocated or universal shelf registration, the
Company shall so advise the Purchaser as a part of the written notice given
pursuant to Section 4(a). In such event, the right of the Purchaser to
registration pursuant to this Section 4 (or participate in an underwritten take
down in the case of an unallocated or universal shelf registration) shall be
conditioned upon the agreement of the Purchaser to participate in such
underwriting and in the inclusion of such Piggyback Registrable Securities in
the underwriting to the extent provided herein. The Purchaser shall (together
with the Company and any other holders distributing securities in such Piggyback
Registration Statement, if any) enter into an underwriting agreement (the
"Piggyback Underwriting Agreement") in customary form with the underwriter or
underwriters selected for such underwriting by the Company. If the Purchaser
disapproves of the terms of any such underwriting, it may elect to withdraw
therefrom by written notice to the Company and the managing underwriters. Any
Piggyback Registrable Securities excluded from such underwriting shall be
excluded from such Piggyback Registration Statement.
(c) Notwithstanding any other provision of this Agreement, if the
managing underwriters of any underwritten offering pursuant to a Piggyback
Request determine, in their sole discretion that, after including all the shares
proposed to be offered by the Company and all the shares of any other Persons
entitled to registration rights with respect to such Piggyback Registration
Statement (pursuant to other agreements with the Company), marketing factors
require a limitation of the number of Piggyback Registrable Securities to be
underwritten (a "Piggyback Market Cut-Back"), the Company shall include in the
registration (i) in the event that such registration is on
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behalf of other shareholders of the Company having demand registration rights
(A) first, the securities requested to be registered by such other shareholders,
and (B) second, the Piggyback Registrable Securities requested to be included in
the registration and securities, if any, requested to be included by others
having these rights, pro rata among the holders of Piggyback Registrable
Securities which are to be registered and sold pursuant to the Piggyback
Registration Statement and others exercising these rights, on the basis of the
number of securities requested to be included by the holders of such Piggyback
Registrable Securities and the others exercising these rights; and (ii) in the
event that such registration is on behalf of the Company, (A) first, the
securities that the Company proposes to sell, (B) second, the Piggyback
Registrable Securities requested to be included in the registration and
securities, if any, requested to be included by others having these rights, pro
rata among the holders of the Piggyback Registrable Securities which are to be
registered and sold pursuant to such Piggyback Registration Statement and others
exercising these rights, on the basis of the number of the Piggyback Registrable
Securities requested to be included by holders of such Piggyback Registrable
Securities, and others exercising these rights; provided, however, in no event
shall the amount of Piggyback Registrable Securities of the Purchaser included
in the underwriting on behalf of the Company be reduced below twenty-five
percent (25%) of the total amount of securities included in such offering.
(d) Except to the extent specifically provided in this Section 4
hereof, the procedures to be followed by the Company and the Purchaser, and the
respective rights and obligations of the Company and the Purchaser, with respect
to the distribution of any Piggyback Registrable Securities by the Purchaser
pursuant to any Piggyback Registration Statement filed by the Company shall be
as set forth in the Piggyback Underwriting Agreement, or any other agreement or
agreements governing the distribution of such Piggyback Registrable Securities
pursuant to such Piggyback Registration Statement.
(e) Notwithstanding the foregoing, however, nothing in this Section
4, or any other provision of this Agreement, shall be construed to limit the
absolute right of the Company, for any reason and in its sole discretion (i) to
delay, suspend or terminate the filing of any Piggyback Registration Statement;
(ii) to delay the effectiveness of any Piggyback Registration Statement; or
(iii) to withdraw such Piggyback Registration Statement.
5. Demand and Shelf Registration Procedures, Rights and Obligations. The
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procedures to be followed by the Company and the Purchaser, and the respective
rights and obligations of the Company and the Purchaser, with respect to the
preparation, filing and effectiveness of Demand Registration Statements and the
Shelf Registration Statement, respectively, and the distribution of Demand
Registrable Securities and Registrable Securities, respectively, pursuant
thereto, are as follows:
(a) the Purchaser shall not be entitled to make more than two (2)
Demand Requests; provided, however, that if any Demand Request: (i) does not
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result in the corresponding Demand Registration Statement being declared
effective by the Commission; (ii) is withdrawn by the Purchaser following the
imposition of an order by
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the Commission with respect to the corresponding Demand Registration Statement;
(iii) is withdrawn by the Purchaser as a result of the exercise by the Company
of its suspension rights pursuant to this Section 5; or (iv) is withdrawn if the
Purchaser shall have learned of a material adverse change in the condition,
business or prospects of the Company different than that known to the Purchaser
at the time the Purchaser shall have initiated the Demand Request (other than a
decline in the Company's stock price since such time unless, however, the
Purchaser agrees to pay, or otherwise reimburse the Company, for all
Registration Expenses) that makes the proposed offering unreasonable in the good
faith judgment of the Purchaser, then such Demand Request in the event of any of
(i) through (iv) shall not count as a Demand Request for any purpose. The
Purchaser shall not make more than one (1) Demand Request within any 180-day
period. Any Demand Request that is withdrawn by the Purchaser for any reason
other than as set forth in the previous sentence shall count as a Demand
Request.
(b) The Company shall use its best efforts to maintain the
effectiveness of each Demand Registration Statement and the Shelf Registration
Statement until the earliest to occur of: (i) the sale or other disposition of
all of the Registrable Securities so registered; (ii) in the case of Demand
Registration Statements, one hundred twenty (120) days after the effective date
of any such Demand Registration Statement; and (iii) in the case of the Shelf
Registration Statement, the earlier of the fifth anniversary of the date of this
Agreement and the date on which all Registrable Securities may be sold under
Rule 144(k) of the Securities Act.
(c) The Company shall prepare and file with the Commission such
amendments and supplements to each Demand Registration Statement and the Shelf
Registration Statement and each prospectus used in connection therewith as may
be necessary to make and to keep such Demand Registration Statement and the
Shelf Registration Statement effective and to comply with the provisions of the
Securities Act with respect to the sale or other disposition of all Registrable
Securities proposed to be distributed pursuant to such Demand Registration
Statement and the Shelf Registration Statement until the earliest to occur of:
(i) the sale or other disposition of all such Registrable Securities so
registered; (ii) in the case of Demand Registration Statements, one hundred
twenty (120) days after the effective date of any such Demand Registration
Statement; and (iii) in the case of the Shelf Registration Statement, the
earlier of the fifth anniversary of the date of this Agreement and the date on
which all Registrable Securities may be sold under Rule 144(k) of the Securities
Act.
(d) In connection with any underwritten offering pursuant to a Demand
Registration Statement or the Shelf Registration Statement, the Purchaser shall
select one investment banking firm to serve as manager of such offering which
must be reasonably acceptable to the Company. The manager is hereinafter
referred to as the "DEMAND MANAGING UNDERWRITER." The Company shall, together
with the Purchaser, enter into an underwriting agreement with the Demand
Managing Underwriter, which agreement shall contain representations, warranties,
indemnities and agreements then customarily included by an issuer in
underwriting agreements with respect to secondary distributions under demand
registration statements or shelf registration statements, as the case may be,
and shall stipulate that the Demand Managing Underwriter will receive
commissions and
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fees and other remuneration in connection with the distribution of any Demand
Registrable Securities or Registrable Securities thereunder.
(e) Notwithstanding any other provision of this Agreement, in the
event that the Company determines that: (i) non-public material information
regarding the Company exists, the immediate disclosure of which would be
significantly disadvantageous to the Company; (ii) the prospectus constituting a
part of any Demand Registration Statement or the Shelf Registration Statement
covering the distribution of any Registrable Securities 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 light of the
circumstances under which they were made, not misleading; or (iii) an offering
of Registrable Securities would materially interfere with any proposed material
acquisition, disposition or other similar corporate transaction or event
involving the Company (each of the events or conditions referred to in clauses
(i), (ii) and (iii) of this sentence is hereinafter referred to as a "Suspension
Condition"), then the Company shall have the right to suspend the filing or
effectiveness of any Demand Registration Statement, the effectiveness of the
Shelf Registration Statement or any distribution of Registrable Securities
thereunder for so long as such Suspension Condition exists; provided that the
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Company shall have suspended the filing or effectiveness of all other
registration statements registering securities for the account of the Company or
any other Person or suspended the distribution of any securities under such
registration statements; provided, further, that in the case of (ii) above, the
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Company shall be obligated to use its best efforts to amend the Demand
Registration Statement or the Shelf Registration Statement, as the case may be,
to correct such material misstatement or omission in such registration statement
and related prospectus as promptly as practicable; and, provided, further, that
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the Company shall not have the right to suspend the filing or effectiveness of
any Demand Registration Statement, the effectiveness of the Shelf Registration
Statement or any distribution of Registrable Securities thereunder within six
(6) months after the termination of a Purchaser Lockup as provided in Section
5(p) below. The Company will as promptly as practicable provide written notice
to the Purchaser when a Suspension Condition arises and when it ceases to exist.
Upon receipt of notice from the Company of the existence of any Suspension
Condition, the Purchaser shall after receipt of such notice discontinue efforts
to: (i) file or cause any Demand Registration Statement or the Shelf
Registration Statement to be declared effective by the Commission (in the event
that such Demand Registration Statement or the Shelf Registration Statement has
not been filed, or has been filed but not declared effective, at the time the
Purchaser receives notice that a Suspension Condition has arisen); or (ii) offer
or sell Registrable Securities (in the event that such Demand Registration
Statement or the Shelf Registration Statement has been declared effective at the
time the Purchaser receives notice that a Suspension Condition has arisen). In
the event that the Purchaser had previously commenced or was about to commence
the distribution of Registrable Securities pursuant to a prospectus under an
effective Demand Registration Statement or the Shelf Registration Statement,
then the Company shall, as promptly as practicable after the Suspension
Condition ceases to exist, make available to the Purchaser (and to each
underwriter, if any, participating in such distribution) an amendment or
supplement to such prospectus.
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(f) Notwithstanding any other provision of this Agreement, the
Company shall not be permitted to postpone (i) the filing or effectiveness of
any Demand Registration Statement or the Shelf Registration Statement or (ii)
the distribution of any Registrable Securities pursuant to an effective Demand
Registration Statement or the Shelf Registration Statement more than two (2)
times in any 360 day period, and the aggregate of such suspensions may not
exceed a total of thirty (30) days in any 360 day period.
(g) The Company shall promptly notify the Purchaser of any stop order
issued or, to the Company's knowledge, threatened, to be issued by the
Commission with respect to any Demand Registration Statement or the Shelf
Registration Statement, and will use its best efforts to prevent the entry of
such stop order or to remove it if entered at the earliest possible date.
(h) The Company shall furnish to the Purchaser (and any underwriter
in connection with any underwritten offering) such number of copies of any
prospectus (including any preliminary prospectus and any amended or supplemented
prospectus), in conformity with the requirements of the Securities Act, as the
Purchaser (and such underwriters) shall reasonably request in order to effect
the offering and sale of any or the Registrable Securities to be offered and
sold, but only while the Company shall be required under the provisions hereof
to cause the Demand Registration Statement or the Shelf Registration Statement
pursuant to which such Registrable Securities are intended to be distributed to
remain current.
(i) The Company shall use its best efforts to register or qualify the
Registrable Securities covered by each Demand Registration Statement and the
Shelf Registration Statement, respectively, under the state securities or "blue
sky" laws of such states as the Purchaser shall reasonably request and to
maintain any such registration or qualification current, until the earliest to
occur of: (i) the sale of all such Registrable Securities so registered; (ii) in
the case of Demand Registration Statements, one hundred twenty (120) days after
the effective date of any such Demand Registration Statement; and (iii) in the
case of the Shelf Registration Statement, until the earlier of the fifth
anniversary of the date of this Agreement and the date on which all Registrable
Securities may be sold under Rule 144(k) of the Securities Act; provided,
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however, that the Company shall not be required to take any action that would
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subject it to the general jurisdiction of the courts of any jurisdiction in
which it is not so subject or to qualify as a foreign corporation in any
jurisdiction where the Company is not so qualified.
(j) The Company shall furnish to the Purchaser and to each
underwriter engaged in an underwritten offering of Registrable Securities a
signed counterpart, addressed to the Purchaser or such underwriter, of (i) an
opinion or opinions of counsel to the Company (with respect to the Company and
securities law compliance by the Company) and (ii) a comfort letter or comfort
letters from the Company's independent public accountants, each in customary
form and covering such matters of the type customarily covered by opinions or
comfort letters, as the case may be, as the Purchaser or the managing
underwriters may reasonably request.
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(k) The Company shall use its best efforts to make appropriate
members of its management reasonably available for due diligence purposes, "road
show" presentations and analyst presentations in connection with any
distributions of Demand Registrable Securities pursuant to a Demand Registration
Statement.
(l) The Company shall use its best efforts to cause all Registrable
Securities to be listed on each securities exchange on which similar securities
of the Company are then listed, or, if the Company does not have a class of
equity securities listed on a national securities exchange, apply for
qualification and use its best efforts to qualify the Registrable Securities
being registered for inclusion on the Nasdaq Stock Market.
(m) The Company shall provide, in connection with the filing of a
registration statement pursuant to this Agreement, a transfer agent and
registrar for all Registrable Securities registered thereunder and a CUSIP
number for all such Registrable Securities not later than the effective date of
such registration.
(n) The Company shall take all such other actions either reasonably
necessary or desirable to permit the Registrable Securities held by the
Purchaser to be registered and disposed of in accordance with the methods of
disposition described herein.
(o) To the extent that the Purchaser makes a Demand Request with
respect to Registrable Securities already registered under an effective Shelf
Registration, the Company may remove the Demand Registrable Securities specified
in the Demand Request from the Registrable Securities registered under the Shelf
Registration for the period from the filing of the Demand Registration Statement
to the time that the Company is no longer required to keep such Demand
Registration Statement effective pursuant to this Agreement; provided, however,
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that the Company shall add any Demand Registrable Securities that were not sold
while such Demand Registration Statement was effective back with the Registrable
Securities registered under the Shelf Registration.
(p) The Purchaser shall not effect any public sale or distribution
(including sales pursuant to Rule 144) of equity securities of the Company, or
any securities convertible into or exchangeable or exercisable for equity
securities of the Company, during the five (5) days prior to, and the sixty
(60)-day period beginning on the effective date of any registration statement
covering the offer and sale of Common Stock for the Company's account having
aggregate proceeds to the Company of not less than $25,000,000 in which the
Purchaser was able to register 50% of the Registrable Securities proposed by the
Purchaser to be included in such registration, unless the underwriters managing
the public offering otherwise agree to allow such sales or distributions (such
restriction on the Purchaser, the "Purchaser Lockup").
6. Registration Expenses. The Company agrees to bear and to pay or cause
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to be paid promptly upon request being made therefor all expenses incident to
the Company's performance of or compliance with this Agreement, including,
without limitation, (i) all Commission and any NASD registration and filing fees
and expenses,
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(ii) all fees and expenses in connection with the qualification of the
Registrable Securities for offering and sale under any state securities and blue
sky laws, including reasonable fees and disbursements of counsel for the
placement or sales agent or underwriters in connection with such qualifications,
(iii) all fees and expenses in connection with the approval for trading of the
Shares or other shares of Common Stock on the Nasdaq National Market or other
appropriate exchange, (iv) all expenses relating to the preparation, printing,
distribution and reproduction of each registration statement required to be
filed hereunder, each prospectus included therein or prepared for distribution
pursuant hereto, each amendment or supplement to the foregoing, the certificates
representing the Registrable Securities and all other documents relating hereto,
(v) internal expenses (including, without limitation, all salaries and expenses
of the Company's officers and employees performing legal or accounting duties),
and (vi) fees, disbursements and expenses of counsel and independent certified
public accountants of the Company (including the expenses of any opinions or
"cold comfort" letters required by or incident to such performance and
compliance) (collectively, the "REGISTRATION EXPENSES"). Notwithstanding the
foregoing, the Purchaser shall pay all underwriting discounts and commissions
attributable to the sale of the Registrable Securities and the fees and
disbursements of any counsel or other advisors or experts retained by the
Purchaser.
7. Representations and Warranties. The Company represents and warrants
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to, and agrees with, the Purchaser that:
(a) Each registration statement covering Registrable Securities and
each prospectus (including any preliminary or summary prospectus) contained
therein and any further amendments or supplements to any such registration
statement or prospectus, when it becomes effective or is filed with the
Commission, as the case may be, and, in the case of an underwritten offering of
Registrable Securities, at the time of the closing under the underwriting
agreement relating thereto will conform in all material respects to the
requirements of the Securities Act, and will not 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 in light of the
circumstances in which they were made; and at all times subsequent to the
Effective Time when a prospectus would be required to be delivered under the
Securities Act, other than from (i) such time as a notice has been given to the
Purchaser pursuant to Section 5(e) hereof until (ii) such time as the Company
furnishes an amended or supplemented prospectus pursuant to Section 5(e) hereof,
each such registration statement, and each prospectus (including any summary
prospectus) contained therein or furnished pursuant to Section 5(e) hereof, as
then amended or supplemented, will conform in all material respects to the
requirements of the Securities Act, and will not 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 in the light of the
circumstances then existing; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company by the
Purchaser expressly for use therein.
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(b) Any documents incorporated by reference in any prospectus
prepared pursuant to this Agreement, when they become or became effective or are
or were filed with the Commission, or if amended, when amended, as the case may
be, will conform or conformed in all material respects to the requirements of
the Exchange Act, and none of such documents will contain or contained an untrue
statement of a material fact or will omit or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances in which they were made; provided,
however, that this representation and warranty shall not apply to any statements
or omissions made in reliance upon and in conformity with information furnished
in writing to the Company by the Purchaser expressly for use therein.
8. Indemnification.
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(a) Indemnification by the Company. Upon the registration of
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Registrable Securities pursuant to this Agreement, and in consideration of the
agreements of the Purchaser contained herein, and as an inducement to the
Purchaser to purchase the Convertible Notes and Warrants, the Company shall, and
it hereby agrees to, indemnify and hold harmless the Purchaser and its officers,
directors, partners, employees, representatives, underwriters and agents and
each control person (as defined in Section 15 of the Exchange Act) against any
losses, claims, damages or liabilities, joint or several, to which the Purchaser
or any of its officers, directors, partners, employees, representatives,
underwriters and agents and each control person may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
registration statement under which such Registrable Securities were registered
under the Securities Act pursuant to this Agreement, or any preliminary, final
or summary prospectus contained therein or furnished by the Company to the
Purchaser, any officer, director, partner, employee, representative, underwriter
or agent or control 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 required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances in which they were made,
and the Company shall, and it hereby agrees to, reimburse the Purchaser, any
officer, director, partner, employee, representative, underwriter or agent or
control person for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such action or claim as such
expenses are incurred; provided, however, that the Company shall not be liable
-------- -------
to any such person in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in such
registration statement, or preliminary, final or summary prospectus, or
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such person expressly for use therein or
is caused by the Purchaser's failure to deliver a copy of the registration
statement or prospectus, or any supplement or amendment of which it is aware.
(b) Indemnification by the Purchaser. In connection with any
--------------------------------
registration statement pursuant to which the Purchaser sold or offered for sale
Registrable Securities,
-11-
the Purchaser agrees to (i) indemnify and hold harmless the Company and its
officers, directors, employees, representatives, underwriter and agents and each
control person against any losses, claims, damages or liabilities to which the
Company may become subject, under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in such registration statement, or any preliminary,
final or summary prospectus contained therein or furnished by the Company to the
Purchaser, any officer, director, partner, employee, representative, underwriter
or agent or control 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 required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances in which they were made, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company by the
Purchaser or its officers, directors, partners, employees representatives, or
agents expressly for use therein, and (ii) reimburse the Company for any legal
or other expenses reasonably incurred by the Company in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided that in no event shall any indemnity under this subsection
(b) exceed the gross proceeds from such offering received by the Purchaser.
(c) Notices of Claims, Etc. Promptly after receipt by an indemnified
-----------------------
party under subsection (a) or (b) above of written notice of the commencement of
any action, such indemnified party shall, if a claim in respect thereof is to be
made against an indemnifying party pursuant to the indemnification provisions of
or contemplated by this Section 8, notify such indemnifying party in writing of
the commencement of such action; but the failure so to notify the indemnifying
party shall not relieve it from any liability which it may have to any
indemnified party other than under the indemnification provisions of or
contemplated by Section 8(a) or 8(b) hereof and only to the extent of prejudice
caused by such failure. In case any such action shall be brought against any
indemnified party and it shall notify an indemnifying party of the commencement
thereof, such indemnifying party shall be entitled to participate therein and,
to the extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel satisfactory to
such indemnified party and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense and costs of
investigation thereof, such indemnifying party shall not be liable to such
indemnified party for any legal expenses of other counsel or any other expenses,
in each case subsequently incurred by such indemnified party, in connection with
the defense thereof.
(d) Contribution. If the indemnification provided for in this
------------
Section 8 is held by a court of competent jurisdiction to be unavailable to or
insufficient to hold harmless an indemnified party in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is appropriate
to reflect the relative fault of the indemnifying party and the indemnified
-12-
party in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative fault of such
indemnifying party and indemnified party shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by such indemnifying party or by such indemnified party,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The parties hereto
agree that it would not be just and equitable if contributions pursuant to this
Section 8(d) were determined by pro rata allocation (even if the Purchaser or
any agents or underwriters or all of them were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in this Section 8(d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages, or
liabilities (or actions in respect thereof) referred to above shall be deemed to
include any legal or other fees or expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 8(d), the Purchaser
shall not be required to contribute any amount in excess of the amount by which
the dollar amount of the proceeds received by the Purchaser from the sale of any
Registrable Securities (after deducting any fees, discounts and commissions
applicable thereto) exceeds the amount of any damages which the Purchaser may
have otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission, and no underwriter shall be required
to contribute any amount in excess of the amount by which the total price at
which the Registrable Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which such
underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The obligations of the Purchaser
and any underwriters in this Section 8(d) to contribute shall be several in
proportion to the principal amount of Registrable Securities registered or
underwritten, as the case may be, by them and not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have; and the
obligations of the Purchaser and any agents and underwriters contemplated by
this Section 8 shall be in addition to any liability which the Purchaser, may
otherwise have.
(f) Notwithstanding the foregoing, to the extent that the provisions
on indemnification and contribution contained in an underwriting agreement
entered into by the Purchaser are in conflict with the foregoing provisions, the
provisions of such underwriting agreement shall control.
9. Non-exclusive Remedy.
--------------------
-13-
(a) Registration Default. If the Shelf Registration is not declared
--------------------
effective by the Commission within eighty (80) days after the date hereof (a
"Registration Default"), the Company shall be required to pay, from and
including the day following such Registration Default until the Shelf
Registration is declared effective, additional interest (the "Non-exclusive
Remedy") under the Convertible Note at a rate per annum equal to an additional
nine percent (9%) of the principal amount of Convertible Notes.
(b) Effective Failure. If the Shelf Registration ceases to be
-----------------
effective (or the Purchaser is otherwise prevented or restricted by the Company
from effecting sales pursuant thereto) (an "Effective Failure") except as
contemplated by the suspension conditions set forth in Section 5 hereof, the
Company shall be required to pay the Non-exclusive Remedy during the period of
such Effective Failure.
10. Miscellaneous.
-------------
(a) No Inconsistent Agreements. The Company represents, warrants,
--------------------------
covenants and agrees that it has not granted, and shall not grant, registration
rights with respect to shares of Common Stock or any other securities which
would be inconsistent with the terms contained in this Agreement.
(b) Specific Performance. The parties hereto acknowledge that there
--------------------
may be no adequate remedy at law if any party fails to perform any of its
obligations hereunder and that each party may be irreparably harmed by any such
failure, 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 compel
specific performance of the obligations of any other party under this Agreement
in accordance with the terms and conditions of this Agreement, in any court of
the United States or any State thereof having jurisdiction.
(c) Notices. Any notice or other communication required or permitted
-------
to be given hereunder shall be deemed effectively given when personally
delivered, telexed, transmitted by facsimile or mailed by pre-paid certified
mail, return receipt requested, or by telephone when confirmed in writing by one
of the preceding methods addressed as follows (as applicable):
If to the Company, to:
Artesyn Technologies, Inc.
0000 Xxxxxx Xxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, CFO
Telephone Number: (000) 000-0000
Facsimile Number: (000) 000-0000
with a required copy to:
Xxxxxxxxxxx & Xxxxxxxx LLP
-14-
1251 Avenue of the Americas
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxxx, Esq.
Telephone Number: (000) 000-0000
Facsimile Number: (000) 000-0000
If to the Purchaser, to:
Finestar International Limited
c/o ABN Amro Management Services (Hong Kong) Limited
00/X Xxxxxxx Xxxxx, Xxxxxx Xxxxx
000 Xxxx'x Xxxx
Xxxxxx Xxx, Xxxx Xxxx
Attention: May Luk
Telephone Number: 000-000-0000-0000
Facsimile Number: 011-852-2868-5078
with a required copy to:
Delta Electronics, Inc.
000 Xxxx Xxxxx Xxxx, Xxxxx
Xxxxxx 000, Xxxxxx, R.O.C.
Attention: Xxxxxx Xxx, Vice President, Global Strategic Planning
Xxxxxxx Xxx, Director, Corporate Development
Telephone Number: 000-000-000-000-000
Facsimile Number: 011-886-287-972-434
and:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
Professional Corporation
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxx, Esq.
Xxxx X. Xxxxxxx, Esq.
Telephone Number: (000) 000-0000
Facsimile Number: (000) 000-0000
or to such other address or number and to the attention of such other person as
either party may designate by written notice to the other party. Notice shall
be effective upon actual receipt.
(d) Survival. The respective indemnities, agreements,
--------
representations, warranties and each other provision set forth in this Agreement
or made pursuant hereto shall remain in full force and effect regardless of any
investigation (or statement as to the results thereof) made by or on behalf of
the Purchaser or any of its officers, directors,
-15-
partners, employees, representatives, or agents, or any controlling person of
any of the foregoing.
(e) Law Governing. This Agreement shall be governed by and construed
-------------
in accordance with the internal laws of the State of New York applicable to
contracts entered into and to be performed wholly within such State.
(f) Headings. The descriptive headings of the several Sections and
--------
paragraphs of this Agreement are inserted for convenience only, do not
constitute a part of this Agreement and shall not affect in any way the meaning
or interpretation of this Agreement.
(g) Entire Agreement; Amendments. This Agreement and the other
----------------------------
writings referred to herein or delivered pursuant hereto which form a part
hereof contain the entire understanding of the parties with respect to its
subject matter. This Agreement supersedes all prior agreements and
understandings between the parties with respect to its subject matter. This
Agreement may be amended and the observance of any term of this Agreement may be
waived (either generally or in a particular instance and either retroactively or
prospectively) only by a written instrument duly executed by the Company and the
Purchaser.
(h) Assignment. In connection with any permitted transfer of the
----------
Shares, the Purchaser may assign its rights hereunder in respect of such Shares
to the transferee. Upon such assignment the transferee shall, insofar as the
transferred Shares are concerned, be entitled to all of the rights, and be
subject to all of the obligations, of the Purchaser under this Agreement, and
all references to the "Purchaser" herein shall thereafter be deemed to include
the Purchaser, or such transferee, or both, as the circumstances warrant.
(i) Counterparts. This agreement may be executed by the parties
------------
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same instrument.
[Signature page follows]
-16-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the date referred to above.
ARTESYN TECHNOLOGIES, INC.
By:_______________________
Name:___________________
Title:__________________
FINESTAR INTERNATIONAL LIMITED
By:_________________________
Name:_____________________
Title:____________________
SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT
