Exhibit 4.2
REGISTRATION RIGHTS AGREEMENT
BETWEEN
LSI LOGIC CORPORATION
AND
XXXXXX BROTHERS INC.
DATED AS OF OCTOBER 30, 2001
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REGISTRATION RIGHTS AGREEMENT, dated as of October 30, 2001, between LSI
Logic Corporation, a Delaware corporation (together with any successor entity,
herein referred to as the "COMPANY"), and Xxxxxx Brothers Inc., as initial
purchaser (the "INITIAL PURCHASER") under the Purchase Agreement (as defined
below).
Pursuant to the Purchase Agreement, dated as of October 24, 2001,
between the Company and the Initial Purchaser (the "PURCHASE AGREEMENT"), the
Initial Purchaser has agreed to purchase from the Company $450,000,000
($517,500,000 if the Initial Purchaser exercises its option in full) in
aggregate principal amount of 4.00% Convertible Subordinated Notes due 2006 (the
"SECURITIES"). The Securities initially may be convertible into fully paid,
nonassessable shares of common stock, par value $0.01 per share, of the Company
on the terms, and subject to the conditions, set forth in the Indenture (as
defined herein). To induce the Initial Purchaser to purchase the Securities, the
Company has agreed to provide the registration rights set forth in this
Agreement pursuant to Section 1 of the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions. As used in this Agreement, the following capitalized
terms shall have the following meanings:
"ADDITIONAL INTEREST": As defined in Section 3(a) hereof.
"ADDITIONAL INTEREST PAYMENT DATE": Each May 1 and November 1.
"AFFILIATE": The definition of "Affiliate" in the Indenture.
"AGREEMENT": This Registration Rights Agreement, as amended, modified or
otherwise supplemented from time to time.
"BLUE SKY APPLICATION": As defined in Section 6(a) hereof.
"BUSINESS DAY": The definition of "Business Day" in the Indenture.
"COMMISSION": Securities and Exchange Commission.
"COMMON STOCK": The definition of "Common Stock" in the Indenture.
"COMPANY": As defined in the preamble hereto.
"EFFECTIVENESS PERIOD": As defined in Section 2(a)(iii) hereof.
"EFFECTIVENESS TARGET DATE": As defined in Section 2(a)(ii) hereof.
"EXCHANGE ACT": Securities Exchange Act of 1934, as amended.
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"HOLDER": A Person who owns, beneficially or otherwise, Transfer
Restricted Securities.
"HOLDER QUESTIONNAIRE": As defined in Section 2(b) hereof.
"INDEMNIFIED HOLDER": As defined in Section 6(a) hereof.
"INDENTURE": The Indenture, dated as of October 30, 2001 between the
Company and State Street Bank and Trust Company of California, N.A., as trustee
(the "TRUSTEE"), pursuant to which the Securities are to be issued, as such
Indenture is amended, modified or supplemented from time to time in accordance
with the terms thereof.
"INITIAL PURCHASER": As defined in the preamble hereto.
"MAJORITY OF HOLDERS": Holders holding over 50% of the aggregate
principal amount of Transfer Restricted Securities outstanding; provided,
however that in determining whether Transfer Restricted Securities are
outstanding, Transfer Restricted Securities held for the account of the Company
or of any of its Affiliates shall be disregarded; provided, further that for
purpose of this definition, a holder of shares of Common Stock that constitute
Transfer Restricted Securities when issued upon conversion of the Securities
shall be deemed to hold an aggregate principal amount of Securities (in addition
to the principal amount of Securities held by such holder) equal to the quotient
of (x) the number of such shares of Common Stock received upon conversion of the
Securities and then held by such holder and (y) the conversion rate(s) in effect
at the time such Holder converted Securities into such shares of Common Stock as
determined in accordance with the Indenture.
"NASD": National Association of Securities Dealers, Inc.
"PERSON": An individual, partnership, corporation, company,
unincorporated organization, trust, joint venture or a government or agency or
political subdivision thereof.
"PURCHASE AGREEMENT": As defined in the preamble hereto.
"PROSPECTUS": The prospectus included in a Shelf Registration Statement,
as amended or supplemented by any prospectus supplement and by all other
amendments thereto, including post-effective amendments, and all material
incorporated by reference into such Prospectus.
"QUESTIONNAIRE DEADLINE": As defined in Section 2(b) hereof.
"RECORD HOLDER": With respect to any Additional Interest Payment Date,
each Person who is a Holder on the Register on the April 15 or October 15
immediately preceding the relevant Additional Interest Payment Date. In the case
of a Holder of shares of Common Stock issued upon conversion of the Securities,
"Record Holder" shall mean each Person who is a Holder of shares of Common Stock
which constitute Transfer
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Restricted Securities on the April 15 or October 15 immediately preceding the
relevant Additional Interest Payment Date.
"REGISTER": The definition of "Register" in the Indenture.
"REGISTRAR": The definition of "Registrar" in the Indenture.
"REGISTRATION DEFAULT": As defined in Section 3(a) hereof.
"SALE NOTICE": As defined in Section 4(e) hereof.
"SECURITIES": As defined in the preamble hereto.
"SECURITIES ACT": Securities Act of 1933, as amended.
"SHELF FILING DEADLINE": As defined in Section 2(a)(i) hereof.
"SHELF REGISTRATION STATEMENT": As defined in Section 2(a)(i) hereof.
"SUSPENSION NOTICE". As defined in Section 4(c) hereof.
"SUSPENSION PERIOD". As defined in Section 4(b)(i) hereof.
"TIA": Trust Indenture Act of 1939, as amended, the rules and
regulations of the Commission thereunder, in each case, as in effect on the date
the Indenture is qualified under the TIA.
"TRANSFER RESTRICTED SECURITIES": Each Security and each share of Common
Stock issued upon conversion of Securities for which a Holder has submitted its
Holder Questionnaire by the Questionnaire Deadline until the earliest of:
(i) the date on which such Security or such share of Common
Stock issued upon conversion thereof has been effectively registered
under the Securities Act and disposed of in accordance with the Shelf
Registration Statement;
(ii) the date on which such Security or such share of Common
Stock issued upon conversion thereof is transferred in compliance with
Rule 144 under the Securities Act or may be sold or transferred by a
person who is not an affiliate of the Company pursuant to Rule 144 under
the Securities Act (or any other similar provision then in force)
without any volume or manner of sale restrictions thereunder; or
(iii) the date on which such Security or such share of Common
Stock issued upon conversion ceases to be outstanding (whether as a
result of redemption, repurchase and cancellation, conversion or
otherwise).
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UNDERWRITTEN REGISTRATION OR UNDERWRITTEN OFFERING: A registration in
which Transfer Restricted Securities are sold to an underwriter for reoffering
to the public pursuant to the Shelf Registration Statement.
Unless the context otherwise requires, the singular includes the plural,
and words in the plural include the singular.
2. Shelf Registration
(a) The Company shall:
(i) not later than 90 days after the date hereof (the "SHELF
FILING DEADLINE"), cause to be filed a registration statement pursuant
to Rule 415 under the Securities Act (the "SHELF REGISTRATION
STATEMENT"), which Shelf Registration Statement shall provide for
resales of all Transfer Restricted Securities held by Holders that have
provided the information required pursuant to the terms of Section 2(b)
hereof;
(ii) use its reasonable efforts to cause the Shelf Registration
Statement to be declared effective by the Commission not later than 180
days after the date hereof (the "EFFECTIVENESS TARGET DATE"); and
(iii) use its reasonable efforts to keep the Shelf Registration
Statement continuously effective, supplemented and amended as required
by the provisions of Section 4(b) hereof (and subject to the right of
the Company to suspend the use of the Shelf Registration Statement by
delivery of a Suspension Notice in accordance with Section 4(b)(i)
hereof) to the extent necessary to ensure that (A) it is available for
resales by the Holders of Transfer Restricted Securities entitled,
subject to Section 2(b), to the benefit of this Agreement and (B) it
conforms with the requirements of this Agreement and the Securities Act
and the rules and regulations of the Commission promulgated thereunder
as announced from time to time, for a period (the "EFFECTIVENESS
PERIOD") until the earliest of:
(1) two years following the last date of original
issuance of any of the Securities; or
(2) the date when the Holders of Transfer Restricted
Securities are able to sell all such Transfer Restricted
Securities immediately without restriction pursuant to the
volume limitation provisions of Rule 144 under the Securities
Act; and
(3) the date when all of the Transfer Restricted
Securities of those Holders that complete and deliver in a
timely manner the Holder Questionnaire described below are
registered under the Shelf Registration Statement and disposed
of in accordance with the Shelf Registration Statement.
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(b) No Holder of Transfer Restricted Securities may include any of its
Transfer Restricted Securities in the Shelf Registration Statement pursuant to
this Agreement unless such Holder furnishes to the Company in writing, prior to
or on the 20th Business Day after the date of the Holder Questionnaire (or, in
the case of a Holder that is a transferee of Transfer Restricted Securities,
prior to or on the earlier of (i) the 20th business day after the completion of
such transfer to the transferee and (ii) 9:00 a.m., San Francisco time, on the
second Business Day before the effectiveness of the Shelf Registration
Statement) (the "QUESTIONNAIRE DEADLINE"), such information as the Company may
reasonably request for use in connection with the Shelf Registration Statement
or Prospectus or preliminary Prospectus included therein and in any application
to be filed with or under state securities laws (the form of which request is
attached as Annex A to the offering memorandum dated October 24, 2001 regarding
the sale of the Securities to the Initial Purchaser and is referred to herein as
the "HOLDER QUESTIONNAIRE"). In connection with all requests for information
from Holders of Transfer Restricted Securities with respect to inclusion of
Transfer Restricted Securities in the Shelf Registration Statement, the Company
shall notify such Holders of the requirements set forth in the preceding
sentence. The Company agrees and undertakes that (i) it shall distribute a
Holder Questionnaire no later than 20 Business Days prior to the effectiveness
of the Shelf Registration Statement to each Holder at the address set forth on
the Register of Securities maintained by the Registrar of the Securities or the
records of the transfer agent of the Common Stock at such time, and (ii) upon
the request of any Holder prior to 9:00 a.m., San Francisco time, on the second
Business Day before the effectiveness of the Shelf Registration Statement, the
Company shall distribute a Holder Questionnaire to such Holder at the address
set forth in such request. Holders that do not complete the Holder Questionnaire
and timely deliver it to the Company shall not be named as selling
securityholders in the Prospectus or preliminary Prospectus included in the
Shelf Registration Statement and therefore shall not be permitted to sell any
Transfer Restricted Securities pursuant to the Shelf Registration Statement.
Notwithstanding the foregoing, upon request from a Holder that did not return a
Holder Questionnaire on a timely basis because it was a subsequent transferee of
Transfer Restricted Securities after the company distributed the Holder
Questionnaire, (i) the Company shall distribute a Holder Questionnaire to such
Holder at the address set forth in the request and (ii) upon receipt of a
properly completed Holder Questionnaire from such Holder, the Company shall use
its reasonable efforts to name such Holder as a selling securityholder by means
of a pre-effective amendment or, if permitted by the Commission, by means of a
Prospectus supplement to the Shelf Registration Statement; provided, however,
that the Company shall have no obligation to pay Additional Interest to such
Holder for its failure to file a pre-effective amendment or Prospectus
supplement. Each Holder as to which the Shelf Registration Statement is being
effected agrees to furnish promptly to the Company all information required to
be disclosed in order to make information previously furnished to the Company by
such Holder not materially misleading.
NO HOLDER OF TRANSFER RESTRICTED SECURITIES SHALL BE ENTITLED TO
ADDITIONAL INTEREST PURSUANT TO SECTION 3 HEREOF UNLESS SUCH HOLDER SHALL HAVE
PROVIDED ALL SUCH REASONABLY REQUESTED INFORMATION PRIOR TO OR ON THE
QUESTIONNAIRE DEADLINE.
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3. Additional Interest.
(a) If:
(i) the Shelf Registration Statement is not filed with the
Commission prior to or on the Shelf Filing Deadline;
(ii) the Shelf Registration Statement has not been declared
effective by the Commission prior to or on the Effectiveness Target
Date;
(iii) except as provided in Section 4(b)(i) hereof, the Shelf
Registration Statement is filed and declared effective but, during the
Effectiveness Period, shall thereafter cease to be effective or fail to
be usable for its intended purpose without being succeeded within five
Business Days by a post-effective amendment to the Shelf Registration
Statement, a supplement to the Prospectus or a report filed with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act that cures such failure and, in the case of a post-effective
amendment, is itself immediately declared effective; or
(iv) (A) prior to or on the 45th or 60th day, as the case may
be, of any Suspension Period, such suspension has not been terminated or
(B) Suspension Periods exceed an aggregate of 90 days in any 360 day
period,
(each such event referred to in foregoing clauses (i) through (iv), a
"REGISTRATION DEFAULT"), the Company hereby agrees to pay liquidated damages in
the form of additional interest ("ADDITIONAL INTEREST") with respect to the
Transfer Restricted Securities from and including the day following the
Registration Default to but excluding the earlier of (1) the day on which the
Registration Default has been cured and (2) the date the Shelf Registration
Statement is no longer required to be kept effective, accruing at a rate:
(A) in respect of the Securities, to each holder of Securities,
(x) with respect to the first 90-day period during which a Registration
Default shall have occurred and be continuing, equal to 0.25% per annum
of the principal amount of the Securities, and (y) with respect to the
period commencing on the 91st day following the day the Registration
Default shall have occurred and be continuing, equal to 0.50% per annum
of the principal amount of the Securities; provided that in no event
shall Additional Interest accrue at a rate per year exceeding 0.50% of
the principal amount of the Securities; and
(B) in respect of any shares of Common Stock, to each holder of
shares of Common Stock issued upon conversion of Securities, (x) with
respect to the first 90-day period in which a Registration Default shall
have occurred and be continuing, equal to 0.25% per annum of the
principal amount of the converted Securities, and (y) with respect to
the period commencing the 91st day following the day the Registration
Default shall have occurred and be continuing, equal to 0.50% per annum
of the principal amount of the converted Securities; provided that in no
event shall Additional Interest accrue at a rate per year exceeding
0.50% of the principal amount of the converted Securities.
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(b) All accrued Additional Interest shall be paid in arrears to Record
Holders by the Company on each Additional Interest Payment Date in the same
manner as the payment of interest on the Securities. Upon the cure of all
Registration Defaults relating to any particular Security or share of Common
Stock, the accrual of Additional Interest with respect to such Security or share
of Common Stock will cease. The Company agrees to deliver all notices,
certificates and other documents contemplated by the Indenture in connection
with the payment of Additional Interest.
Notwithstanding any other provision of this Agreement, no Additional
Interest shall accrue as to any Transfer Restricted Security from and after the
earlier of the date such security is no longer a Transfer Restricted Security
and the expiration of the Effectiveness Period. All obligations of the Company
set forth in this Section 3 that are outstanding with respect to any Transfer
Restricted Security at the time such security ceases to be a Transfer Restricted
Security shall survive until such time as all such obligations with respect to
such Transfer Restricted Security shall have been satisfied in full.
The parties hereto agree that the Holders of Transfer Restricted
Securities will suffer damages, and that it would not be feasible to ascertain
the extent of such damages with precision, if a Registration Default were to
occur. The parties hereto further agree that the Additional Interest provided
for in this Section 3 constitutes a reasonable estimate of the damages that may
be incurred by Holders of Transfer Restricted Securities by reason of a
Registration Default. Therefore, the parties hereto agree that the sole damages
payable for a violation of the terms of this Agreement with respect to which
Additional Interest is expressly provided for (including any non-compliance with
a covenant that results, directly or indirectly, in a Registration Default)
shall be such Additional Interest.
4. Registration Procedures.
(a) In connection with the Shelf Registration Statement, the Company
shall comply with all the provisions of Section 4(b) hereof and shall use its
reasonable efforts to effect such registration to permit the sale of the
Transfer Restricted Securities, and pursuant thereto, shall prepare and file
with the Commission a Shelf Registration Statement relating to the registration
on any appropriate form under the Securities Act.
(b) In connection with the Shelf Registration Statement and any
Prospectus required by this Agreement to permit the sale or resale of Transfer
Restricted Securities, the Company shall:
(i) Subject to any notice by the Company in accordance with this
Section 4(b) of the existence of any fact or event of the kind described
in Section 4(b)(iii)(D) and the Company's right to invoke a Suspension
Period in the manner described in this Section 4(b)(i), use its
reasonable efforts to keep the Shelf Registration Statement continuously
effective during the Effectiveness Period; upon the occurrence of any
event that would cause the Shelf Registration Statement or the
Prospectus contained therein (A) to contain a material misstatement or
omission or (B) not be effective and usable for resale of Transfer
Restricted Securities during the Effectiveness Period, unless a
Suspension Period
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is then in effect, the Company shall file promptly an appropriate
amendment to the Shelf Registration Statement, a supplement to the
Prospectus or a report filed with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act, in the case of clause
(A), correcting any such misstatement or omission, and, in the case of
either clause (A) or (B), use its reasonable efforts to cause such
amendment to be declared effective and the Shelf Registration Statement
and the related Prospectus to become usable for their intended purposes
as soon as practicable thereafter. Notwithstanding the foregoing, the
Company may suspend the effectiveness of the Shelf Registration
Statement by written notice to the Holders for a period not to exceed an
aggregate of 45 days in any 90-day period or 90 days in any 360-day
period (each such period, a "SUSPENSION PERIOD") if:
(x) an event occurs and is continuing as a result of
which the Shelf Registration Statement, the Prospectus, any
amendment or supplement thereto, or any document incorporated by
reference therein would, in the Company's judgment, contain an
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading; and
(y) the Company reasonably determines that the
disclosure of such event at such time would have a material
adverse effect on the Company and its subsidiaries taken as a
whole;
provided that, in the event the disclosure relates to a previously
undisclosed proposed or pending material business transaction, the
disclosure of which the Company determines in good faith would be
reasonably likely to impede the Company's ability to consummate such
transaction, the Company may extend the 45-day Suspension Period from 45
days to 60 days. The Company shall not be required to specify in the
written notice to the Holders the nature of the event giving rise to the
Suspension Period.
(ii) Prepare and file with the Commission such amendments and
post-effective amendments to the Shelf Registration Statement as may be
necessary to keep the Shelf Registration Statement effective during the
Effectiveness Period; cause the Prospectus to be supplemented by any
required Prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 (it being understood that, subject to the
circumstances set forth in the penultimate sentence of each of Sections
2(b) and 4(d), the Company shall not be required to file a prospectus
supplement pursuant to 424(b) with respect to any Holder that failed to
submit its Holder Questionnaire by the Questionnaire Deadline) under the
Securities Act, and to comply fully with the applicable provisions of
Rules 424 and 430A under the Securities Act in a timely manner; and
comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by the Shelf Registration
Statement during the applicable period in accordance with the intended
method or methods of distribution by the sellers thereof set forth in
the Shelf Registration Statement or supplement to the Prospectus.
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(iii) Advise in writing the underwriter(s), if any, and the
selling Holders promptly (in the case of Holders, at the address set
forth on the Register of Securities maintained by the Registrar of the
Securities or the records of the transfer agent of the Common Stock at
such time) of each of the following:
(A) when the Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to
the Shelf Registration Statement or any post-effective amendment
thereto, when the same has become effective,
(B) any request by the Commission for amendments to the
Shelf Registration Statement or amendments or supplements to the
Prospectus or for additional information relating thereto,
(C) the issuance by the Commission of any stop order
suspending the effectiveness of the Shelf Registration Statement
under the Securities Act or of the suspension by any state
securities commission of the qualification of the Transfer
Restricted Securities for offering or sale in any jurisdiction,
or the initiation of any proceeding for any of the preceding
purposes, or
(D) the existence of any fact or the happening of any
event, during the Effectiveness Period (but not as to the
substance of any such fact or event), that makes any statement
of a material fact made in the Shelf Registration Statement, the
Prospectus, any amendment or supplement thereto, or any document
incorporated by reference therein untrue, or that requires the
making of any additions to or changes in the Shelf Registration
Statement or the Prospectus in order to make the statements
therein not misleading (provided, however, that no notice by the
Company shall be required pursuant to this clause (D) in the
event that the Company either promptly files a Prospectus
supplement to update the Prospectus or a Form 8-K or other
appropriate Exchange Act report that is incorporated by
reference into the Shelf Registration Statement, which, in
either case, contains the requisite information with respect to
such material event that results in such Shelf Registration
Statement no longer containing any such untrue or misleading
statements).
If at any time the Commission shall issue any stop order suspending the
effectiveness of the Shelf Registration Statement, or any state
securities commission or other regulatory authority shall issue an order
suspending the qualification or exemption from qualification of the
Transfer Restricted Securities under state securities or Blue Sky laws,
the Company shall use its reasonable efforts to promptly obtain the
withdrawal or lifting of such order and will provide to each Holder (in
the case of Holders, at the address set forth on the Register of
Securities maintained by the Registrar of the Securities or the records
of the transfer agent of the Common Stock at such time) who is named in
the Shelf Registration Statement prompt notice of the withdrawal of any
such order.
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(iv) If requested by any selling Holders or the underwriter(s),
if any, incorporate in the Shelf Registration Statement or Prospectus,
pursuant to an amendment prior to effectiveness if necessary, such
information as such selling Holders and underwriter(s), if any, may
reasonably request to have included therein, including, without
limitation information relating to the "Plan of Distribution" of the
Transfer Restricted Securities as specified by such Holder in such
Holder Questionnaire to be delivered prior to the Questionnaire
Deadline.
(v) Furnish to each selling Holder (in the case of Holders, at
the address set forth in the Register of Securities or the records of
the transfer agent of the Common Stock at such time) and each of the
underwriter(s), if any, upon their request, without charge, at least one
copy of the Shelf Registration Statement, as first filed with the
Commission, and of each amendment thereto (and any documents
incorporated by reference therein or exhibits thereto (or exhibits
incorporated in such exhibits by reference) as such Person may request).
(vi) Deliver to each selling Holder (in the case of Holders, at
the address set forth in the Register of Securities or the records of
the transfer agent of the Common Stock at such time) and underwriter(s),
if any, without charge, as many copies of the Prospectus (including each
preliminary prospectus) and any amendment or supplement thereto as such
Persons reasonably may request; subject to any notice by the Company in
accordance with this Section 4(b) of the existence of any fact or event
of the kind described in Section 4(b)(iii) (D), the Company hereby
consents to the use of the Prospectus and any amendment or supplement
thereto by each of the selling Holders in connection with the offering
and the sale of the Transfer Restricted Securities covered by the
Prospectus or any amendment or supplement thereto.
(vii) In connection with an Underwritten Offering, the Company
shall:
(A) upon request, furnish to each underwriter, if any,
in such substance and scope as they may reasonably request and
as are customarily made by issuers to underwriters in primary
underwritten offerings for selling security holders, upon the
date of closing of any sale of Transfer Restricted Securities in
an Underwritten Registration:
(1) a certificate, dated the date of such
closing, signed by the Chief Financial Officer of the
Company confirming, as of the date thereof, the matters
customarily covered in an officer's certificate to
underwriters in connection with underwritten offerings
of securities;
(2) opinions, each dated the date of such
closing, of counsel to the Company covering such of the
matters as are customarily covered in legal opinions to
underwriters in connection with underwritten offerings
of securities; and
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(3) customary comfort letters, dated the date of
such closing, from the Company's independent accountants
(and from any other accountants whose report is
contained or incorporated by reference in the Shelf
Registration Statement) in the customary form and
covering matters of the type customarily covered in
comfort letters to underwriters in connection with
underwritten offerings of securities; and
(B) deliver such other documents and certificates as may
be reasonably requested by such parties to evidence compliance
with clause (A) above and with any customary conditions
contained in the underwriting agreement or other agreement
entered into by the selling Holders pursuant to this clause (x).
(viii) Before any public offering of Transfer Restricted
Securities, cooperate with the selling Holders, the underwriter(s), if
any, and their counsel in connection with the registration and
qualification of the Transfer Restricted Securities under the securities
or Blue Sky laws of such jurisdictions in the United States as the
selling Holders or underwriter(s), if any, may reasonably request and do
any and all other acts or things necessary or advisable to enable the
disposition in such jurisdictions of the Transfer Restricted Securities
covered by the Shelf Registration Statement; provided, however, that the
Company shall not be required (A) to register or qualify as a foreign
corporation or a dealer of securities where it is not now so qualified
or to take any action that would subject it to the service of process in
any jurisdiction where it is not now so subject or (B) to subject
themselves to taxation in any such jurisdiction if they are not now so
subject.
(ix) Cooperate with the selling Holders and underwriter(s), if
any, to facilitate the timely preparation and delivery of certificates
representing Transfer Restricted Securities to be sold and not bearing
any restrictive legends (unless required by applicable securities laws);
and enable such Transfer Restricted Securities to be in such
denominations and registered in such names as the Holders may request at
least two Business Days before any sale of Transfer Restricted
Securities.
(xii) Use its reasonable efforts to cause the Transfer
Restricted Securities covered by the Shelf Registration Statement to be
registered with or approved by such other U.S. governmental agencies or
authorities as may be necessary to enable the seller or sellers thereof
to consummate the disposition of such Transfer Restricted Securities.
(xiii) Subject to Section 4(b)(i) hereof, if any fact or event
contemplated by Section 4(b)(iii)(D) hereof shall exist or have
occurred, use its reasonable efforts to prepare a supplement or
post-effective amendment to the Shelf Registration Statement or related
Prospectus or any document incorporated therein by reference or file any
other required document so that, as thereafter
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delivered to the purchasers of Transfer Restricted Securities, the
Prospectus will not contain an untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
in which they are made, not misleading; provided that the Company shall
not be required to comply with the foregoing obligations during any
Suspension Period or any period during which Additional Interest is
accruing.
(xiv) Provide CUSIP numbers for all Transfer Restricted
Securities not later than the effective date of the Shelf Registration
Statement and provide the Trustee under the Indenture with certificates
for the Securities that are in a form eligible for deposit with The
Depository Trust Company.
(xv) Cooperate and assist in any filings required to be made
with the NASD and in the performance of any due diligence investigation
by any underwriter that is required to be retained in accordance with
the rules and regulations of the NASD.
(xvi) Otherwise use its reasonable efforts to comply with all
applicable rules and regulations of the Commission and all reporting
requirements under the rules and regulations of the Exchange Act.
(xvii) Cause the Indenture to be qualified under the TIA not
later than the effective date of the Shelf Registration Statement
required by this Agreement, and, in connection therewith, cooperate with
the Trustee and the holders of Securities to effect such changes to the
Indenture as may be required for such Indenture to be so qualified in
accordance with the terms of the TIA; and execute and use its reasonable
efforts to cause the Trustee thereunder to execute all documents that
may be required to effect such changes and all other forms and documents
required to be filed with the Commission to enable such Indenture to be
so qualified in a timely manner.
(xviii) Cause all Common Stock covered by the Shelf Registration
Statement to be listed or quoted, as the case may be, on each securities
exchange or automated quotation system on which Common Stock is then
listed or quoted.
(c) Each Holder agrees by acquisition of a Transfer Restricted Security
that, upon receipt of any notice (a "SUSPENSION NOTICE") from the Company of the
existence of any fact of the kind described in Section 4(b)(iii)(D) hereof, such
Holder will, and will use its reasonable efforts to cause any underwriter(s) in
an Underwritten Offering to, forthwith discontinue disposition of Transfer
Restricted Securities pursuant to the Shelf Registration Statement until:
(i) such Holder has received copies of the supplemented or
amended Prospectus contemplated by Section 4(b)(xiii) hereof; or
(ii) such Holder is advised in writing by the Company that the
use of the Prospectus may be resumed, and has received copies of any
additional or supplemental filings that are incorporated by reference in
the Prospectus.
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Each Holder agrees to keep the receipt of a Suspension Notice and its contents
confidential. If so directed by the Company, each Holder will deliver to the
Company (at the Company's expense) all copies, other than permanent file copies
then in such Holder's possession, of the Prospectus covering such Transfer
Restricted Securities that was current at the time of receipt of such notice of
suspension.
(d) Each Holder who intends to be named as a selling Holder in the Shelf
Registration Statement shall furnish to the Company in writing, within 20
Business Days after the date of the Holder Questionnaire, such information
regarding such Holder and the proposed distribution by such Holder of its
Transfer Restricted Securities as the Company may reasonably request for use in
connection with the Shelf Registration Statement or Prospectus or preliminary
Prospectus included therein. Holders that do not complete the Holder
Questionnaire and deliver it to the Company shall not be named as selling
securityholders in the Prospectus or preliminary Prospectus included in the
Shelf Registration Statement and therefore shall not be permitted to sell any
Transfer Restricted Securities pursuant to the Shelf Registration Statement;
provided, however, that notwithstanding the foregoing, transferees of all or a
portion of a Holder's Transfer Restricted Securities who furnish the Company a
completed Holder Questionnaire on or prior to the earlier of (i) the 20th
business day after the completion of such transfer to the transferee and (ii)
9:00 a.m., San Francisco time, on the second Business Day before the
effectiveness of the Shelf Registration Statement shall be named as selling
securityholders in the Prospectus or preliminary Prospectus included in the
Shelf Registration Statement, provided, further, that upon request from a Holder
that did not return a Holder Questionnaire on a timely basis because it was a
subsequent transferee of Transfer Restricted Securities after the Company
distributed the Holder Questionnaire, (i) the Company shall distribute a Holder
Questionnaire to such Holder at the address set forth in the request and (ii)
upon receipt of a properly completed Holder Questionnaire from such Holder, the
Company shall use its reasonable efforts to name such Holder as a selling
securityholder by means of a pre-effective amendment or, if permitted by the
Commission, by means of a Prospectus supplement to the Shelf Registration
Statement (provided, that the Company shall have no obligation to pay Additional
Interest to such Holder for its failure to file a pre-effective amendment or
Prospectus supplement). Each Holder who intends to be named as a selling Holder
in the Shelf Registration Statement shall promptly furnish to the Company in
writing such other information as the Company may from time to time reasonably
request in writing.
(e) Upon the effectiveness of the Shelf Registration Statement, each
Holder shall notify the Company at least five Business Days prior to any
intended distribution of Transfer Restricted Securities pursuant to the Shelf
Registration Statement (a "SALE NOTICE"), which notice shall be effective for
five Business Days. Each Holder of Transfer Restricted Securities, by accepting
the same, agrees to hold any communication by the Company in response to a Sale
Notice in confidence. Upon receipt of a Sale Notice, the Company shall inform
each Holder in writing of the existence of a Suspension Period or otherwise, of
the kind of event described in Section 4(b)(iii)(D).
15
5. Registration Expenses.
All expenses incident to the Company's performance of or
compliance with this Agreement shall be borne by the Company regardless of
whether a Shelf Registration Statement becomes effective, including, without
limitation:
(i) all registration and filing fees and expenses (including
filings made with the NASD);
(ii) all fees and expenses of compliance with federal securities
and state Blue Sky or securities laws;
(iii) all expenses of printing (including printing of
Prospectuses and certificates for the Common Stock to be issued upon
conversion of the Securities) and the Company's expenses for messenger
and delivery services and telephone;
(iv) all fees and disbursements of counsel to the Company;
(v) all application and filing fees in connection with listing
(or authorizing for quotation) the Common Stock on a national securities
exchange or automated quotation system pursuant to the requirements
hereof; and
(vi) all fees and disbursements of independent certified public
accountants of the Company.
The Company shall bear its internal expenses (including, without
limitation, all salaries and expenses of their officers and employees performing
legal, accounting or other duties), the expenses of any annual audit and the
fees and expenses of any Person, including special experts, retained by the
Company. Notwithstanding the foregoing, the Holders of the Transfer Restricted
Securities being registered shall pay all agency fees and commissions and
underwriting discounts and commissions attributable to the sale of such Transfer
Restricted Securities and the fees and disbursements of any counsel or other
advisors or experts retained by such Holders (severally and jointly), other than
the counsel and experts that represent the Company specifically referred to
above.
6. Indemnification and Contribution.
(a) The Company shall indemnify and hold harmless each Holder, such
Holder's officers, directors and employees and each person, if any, who controls
such Holder within the meaning of the Securities Act (each, an "INDEMNIFIED
HOLDER"), from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof (including, but not limited to, any
loss, claim, damage, liability or action relating to resales of the Transfer
Restricted Securities), to which such Indemnified Holder may become subject,
insofar as any such loss, claim, damage, liability or action arises out of, or
is based upon:
(i) any untrue statement or alleged untrue statement of a
material fact contained in (A) the Shelf Registration Statement or
Prospectus or any amendment or supplement thereto or (B) any blue sky
application or other
16
document or any amendment or supplement thereto prepared or executed by
the Company (or based upon written information furnished by or on behalf
of the Company expressly for use in such blue sky application or other
document or amendment on supplement) filed in any jurisdiction
specifically for the purpose of qualifying any or all of the Transfer
Restricted Securities under the securities law of any state or other
jurisdiction (such application or document being hereinafter called a
"BLUE SKY APPLICATION"); or
(ii) the omission or alleged omission to state therein any
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading,
and shall reimburse each Indemnified Holder promptly upon demand for any legal
or other expenses reasonably incurred by such Indemnified Holder in connection
with investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action as such expenses are incurred; provided,
however, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage, liability or action arises out of, or is
based upon, any untrue statement or alleged untrue statement or omission or
alleged omission made in the Shelf Registration Statement or Prospectus or
amendment or supplement thereto or Blue Sky Application in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
such Holder (or its related Indemnified Holder) specifically for use therein;
provided, further, that the Company shall not be liable to any Indemnified
Holder under the indemnity agreement in this subsection (a) with respect to any
preliminary Prospectus to the extent that any such loss, claim, damage or
liability of such Indemnified Holder results from the fact that such Indemnified
Holder sold Transfer Restricted Securities to a Person as to whom it shall be
established that there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the final Prospectus in any case where such
delivery is required by the Securities Act if the Company had previously
furnished copies thereof in sufficient quantities to such Indemnified Holder and
the loss, claim, damage or liability of such Indemnified Holder results from an
untrue statement or omission of a material fact contained in the preliminary
Prospectus which was (i) identified to such Indemnified Holder at or prior to
the earlier of the filing with the Commission or the furnishing to such
Indemnified Holder of the corrected Prospectus and (ii) corrected in the final
Prospectus. The foregoing indemnity agreement is in addition to any liability
which the Company may otherwise have to any Indemnified Holder.
(b) Each Holder, severally and not jointly, shall indemnify and hold
harmless the Company, its officers, directors and employees and each person, if
any, who controls the Company within the meaning of the Securities Act, from and
against any loss, claim, damage or liability, joint or several, or any action in
respect thereof, to which the Company or any such officer, employee or
controlling person may become subject, insofar as any such loss, claim, damage
or liability or action arises out of, or is based upon:
(i) any untrue statement or alleged untrue statement of any
material fact contained in the Shelf Registration Statement or
Prospectus or any amendment or supplement thereto or any Blue Sky
Application; or
17
(ii) the omission or the alleged omission to state therein any
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading,
but in each case 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 or on behalf of
such Holder (or its related Indemnified Holder) specifically for use therein,
and shall reimburse the Company and any such officer, employee or controlling
person promptly upon demand for any legal or other expenses reasonably incurred
by the Company or any such officer, employee or controlling person in connection
with investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action as such expenses are incurred. The foregoing
indemnity agreement is in addition to any liability which any Holder may
otherwise have to the Company and any such officer, employee or controlling
person.
(c) Promptly after receipt by an indemnified party under this Section 6
of notice of any claim or the commencement of any action, the indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under this Section 6, notify the indemnifying party in writing of the
claim or the commencement of that action; provided, however, that the failure to
notify the indemnifying party shall not relieve it from any liability which it
may have under this Section 6 except to the extent it has been materially
prejudiced by such failure and, provided, further, that the failure to notify
the indemnifying party shall not relieve it from any liability which it may have
to an indemnified party otherwise than under this Section 6. If any such claim
or action shall be brought against an indemnified party, and it shall notify the
indemnifying party thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 6 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
the Holders shall have the right to employ a single counsel to represent jointly
a the Holders and their officers, employees and controlling persons who may be
subject to liability arising out of any claim in respect of which indemnity may
be sought by the Holders against the Company under this Section 6 if the Holders
seeking indemnification shall have been advised by legal counsel that there may
be one or more legal defenses available to such Holders and their respective
officers, employees and controlling persons that are different from or
additional to those available to the Company, and in that event the fees and
expenses of such separate counsel shall be paid by the Company. No indemnifying
party shall:
(i) without the prior written consent of the indemnified parties
(which consent shall not be unreasonably withheld) settle or compromise
or consent to the entry of any judgment with respect to any pending or
threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not
the indemnified parties are actual or potential parties to such claim or
action) unless such settlement, compromise or consent
18
includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding, or
(ii) be liable for any settlement of any such action effected
without its written consent (which consent shall not be unreasonably
withheld), but if settled with its written consent or if there be a
final judgment for the plaintiff in any such action, the indemnifying
party agrees to indemnify and hold harmless any indemnified party from
and against any loss of liability by reason of such settlement or
judgment.
(d) If the indemnification provided for in this Section 6 shall for any
reason be unavailable or insufficient to hold harmless an indemnified party
under Section 6(a) or 6(b) in respect of any loss, claim, damage or liability
(or action in respect thereof) referred to therein, each indemnifying party
shall, in lieu of indemnifying such indemnified party, contribute to the amount
paid or payable by such indemnified party as a result of such loss, claim,
damage or liability (or action in respect thereof):
(i) in such proportion as is appropriate to reflect the relative
benefits received by the Company from the offering and sale of the
Transfer Restricted Securities on the one hand and a Holder with respect
to the sale by such Holder of the Transfer Restricted Securities on the
other, or
(ii) if the allocation provided by clause (6)(d)(i) is not
permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause 6(d)(i) but
also the relative fault of the Company on the one hand and the Holders
on the other in connection with the statements or omissions or alleged
statements or alleged omissions that resulted in such loss, claim,
damage or liability (or action in respect thereof), as well as any other
relevant equitable considerations.
The relative benefits received by the Company on the one hand and a Holder on
the other with respect to such offering and such sale shall be deemed to be in
the same proportion as the total net proceeds from the offering of the
Securities purchased under the Purchase Agreement (before deducting expenses)
received by the Company, on the one hand, bear to the total proceeds received by
such Holder with respect to its sale of Transfer Restricted Securities on the
other. The relative fault of the parties shall be determined by reference to
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or the Holders on the other, the intent
of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
each Holder agree that it would not be just and equitable if the amount of
contribution pursuant to this Section 6(d) were determined by pro rata
allocation or by any other method of allocation that does not take into account
the equitable considerations referred to in the first sentence of this paragraph
(d). The amount paid or payable by an indemnified party as a result of the loss,
claim, damage or liability, or action in respect thereof, referred to above in
this Section 6 shall be deemed to include, for purposes of this Section 6, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending or preparing to defend any such
action or
19
claim. Notwithstanding the provisions of this Section 6, no Holder shall be
required to contribute any amount in excess of the amount by which the total
price at which the Transfer Restricted Securities purchased by it were resold
exceeds the amount of any damages which such Holder has otherwise been required
to pay by reason of any 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 Holders' obligations to contribute as provided in this
Section 6(d) are several and not joint.
7. Rule 144A. In the event the Company is not subject to Section 13 or
15(d) of the Exchange Act, the Company hereby agrees with each Holder, for so
long as any Transfer Restricted Securities remain outstanding, to make available
to any Holder or beneficial owner of Transfer Restricted Securities in
connection with any sale thereof and any prospective purchaser of such Transfer
Restricted Securities from such Holder or beneficial owner, the information
required by Rule 144A(d)(4) under the Securities Act in order to permit resales
of such Transfer Restricted Securities pursuant to Rule 144A.
8. Underwritten Registrations. The Holders of Transfer Restricted
Securities covered by the Shelf Registration Statement who desire to do so may
sell such Transfer Restricted Securities in an Underwritten Offering if approved
by the Company in its sole discretion; provided, however that no such Holder may
participate in any Underwritten Registration hereunder unless such Holder:
(i) agrees to sell such Holder's Transfer Restricted Securities
on the basis provided in any underwriting arrangements approved by the
Persons entitled hereunder to approve such arrangements; and
(ii) completes and executes all reasonable questionnaires,
powers of attorney, indemnities, underwriting agreements, lock-up
letters and other documents required under the terms of such
underwriting arrangements.
In any such Underwritten Offering, the investment banker or investment bankers
and manager or managers that will administer the offering will be selected by a
Majority of Holders whose Transfer Restricted Securities are included in such
offering; provided, that such investment bankers and managers must be reasonably
satisfactory to the Company. If requested by the underwriter(s), if any, the
Company agrees to make appropriate officers of the Company available to the
underwriters for meetings with prospective purchasers of the Transfer Restricted
Securities and prepare and present to potential investors customary "road show"
or marketing materials in a manner consistent with other new issuances of other
securities similar to the Transfer Restricted Securities.
9. Miscellaneous.
(a) Actions Affecting Transfer Restricted Securities. The Company shall
not, directly or indirectly, take any action with respect to the Transfer
Restricted Securities as a class that would adversely affect the ability of the
Holders of Transfer Restricted Securities to include such Transfer Restricted
Securities in a registration undertaken pursuant to this Agreement.
20
(b) No Inconsistent Agreements. The Company will not, on or after the
date of this Agreement, enter into any agreement with respect to its securities
that is inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof. In addition, the Company shall
not grant to any of its security holders (other than the Holders of Transfer
Restricted Securities in such capacity) the right to include any of its
securities in the Shelf Registration Statement provided for in this Agreement
other than the Transfer Restricted Securities. The Company has not previously
entered into any agreement (which has not expired or been terminated) granting
any registration rights with respect to its securities to any Person which
rights conflict with the provisions hereof.
(c) Amendments and Waivers. This Agreement may not be amended, modified
or supplemented, and waivers or consents to or departures from the provisions
hereof may not be given, unless the Company has obtained the written consent of
a Majority of Holders.
(d) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, facsimile
transmission, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of
the Registrar under the Indenture or the transfer agent of the Common
Stock, as the case may be; and
(ii) if to the Company:
LSI Logic Corporation
0000 XxXxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Tel: (000) 000-0000
Fax: (000) 000-0000;
with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt acknowledged, if transmitted by
facsimile; and on the next Business Day, if timely delivered to an air courier
guaranteeing overnight delivery.
21
(e) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties, including
without limitation and without the need for an express assignment, subsequent
Holders of Transfer Restricted Securities; provided, however, that (i) this
Agreement shall not inure to the benefit of or be binding upon a successor or
assign of a Holder unless and to the extent such successor or assign acquired
Transfer Restricted Securities from such Holder and (ii) nothing contained
herein shall be deemed to permit any assignment, transfer or other disposition
of Transfer Restricted Securities in violation of the terms of the Purchase
Agreement or the Indenture. If any transferee of any Holder shall acquire
Transfer Restricted Securities, in any manner, whether by operation of law or
otherwise, such Transfer Restricted Securities shall be held subject to all of
the terms of this Agreement, and by taking and holding such Transfer Restricted
Securities such person shall be conclusively deemed to have agreed to be bound
by and to perform all of the terms and provisions of this Agreement.
(f) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) Securities Held by the Company or Their Affiliates. Whenever the
consent or approval of Holders of a specified percentage of Transfer Restricted
Securities is required hereunder, Transfer Restricted Securities held by the
Company or its "affiliates" (as such term is defined in Rule 405 under the
Securities Act) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(j) Severability. If any one or more of the provisions contained herein,
or the application thereof in any circumstance, is held invalid, illegal or
unenforceable, the validity, legality and enforceability of any such provision
in every other respect and of the remaining provisions contained herein shall
not be affected or impaired thereby.
(k) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted by the Company with respect to
the Transfer Restricted Securities. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
LSI LOGIC CORPORATION
By /s/ Xxxxx Look
------------------------------------------
Name: Xxxxx Look
Title: Executive Vice President & CEO
XXXXXX BROTHERS INC.
By /s/ Xxxx X. Xxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Managing Director
