4,000,000 HIGH TIDES-SM-
TITAN CAPITAL TRUST
5 3/4% CONVERTIBLE PREFERRED SECURITIES
REMARKETABLE TERM INCOME DEFERRABLE EQUITY SECURITIES (HIGH TIDES-SM-)
(LIQUIDATION AMOUNT $50 PER
EACH OF THE HIGH TIDES)
GUARANTEED TO THE EXTENT SET FORTH
IN THE GUARANTEE AGREEMENT BY, AND
CONVERTIBLE INTO COMMON STOCK OF,
THE TITAN CORPORATION
REGISTRATION RIGHTS AGREEMENT
February 9, 2000
Credit Suisse First Boston Corporation
Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation
c/o Credit Suisse First Boston Corporation
As Representative of Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation
Xxxxxx Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Dear Sirs:
Titan Capital Trust, a statutory business trust formed under the laws of
the State of Delaware (the "Trust") by The Titan Corporation, a Delaware
corporation (the "Company"), proposes to issue and sell to Credit Suisse First
Boston Corporation and the other initial purchasers (collectively, the
"Purchasers") named in Schedule A to the Purchase Agreement dated February 3,
2000 (the "Purchase Agreement"), among the Purchasers, the Company and the
Trust, upon the terms set forth in the Purchase Agreement, up to 4,000,000 (or
up to 5,000,000 to the extent the over-allotment option is exercised in full) of
its Remarketable Term Income Deferrable Equity Securities (HIGH TIDES)K,
liquidation amount $50 per security (the "Preferred Securities") (the "Initial
Placement"). The proceeds of the sale by the
Trust of the Preferred Securities and the Common Securities of the Trust,
liquidation amount $50 per Common Security (the "Common Securities"), are to be
invested in the Convertible Senior Subordinated Debentures due 2030 of the
Company issued pursuant to the Indenture dated February 9, 2000 between the
Company and Wilmington Trust Company, as Trustee (the "Debentures") having an
aggregate principal amount equal to the aggregate liquidation amount of the
Preferred Securities and the Common Securities. As an inducement to you to enter
into the Purchase Agreement and in satisfaction of a condition to your
obligations thereunder, the Trust and the Company agree with you, (i) for the
benefit of the Purchasers and (ii) for the benefit of the registered holders
from time to time of the Preferred Securities, the Debentures and the Common
Stock of The Titan Corporation, par value $.01 per share (such Common Stock and
any other shares issuable in place of or in addition to such shares pursuant to
the antidilution provisions of the Debentures, being referred to as the "Common
Stock"), of the Company issuable upon conversion of the Preferred Securities or
the Debentures (collectively, together with the Guarantee by the Company of the
Preferred Securities, the "Securities"), including the Purchasers (each of the
foregoing a "Holder" and together the "Holders"), as follows:
1. DEFINITIONS. Capitalized terms used herein without definition shall
have their respective meanings set forth in or pursuant to the Purchase
Agreement or, if not defined therein, in the Offering Circular dated February 3,
2000, in respect of the Preferred Securities or, if not defined therein, in the
Amended and Restated Declaration of Trust dated as of February 9, 2000 (the
"Declaration") relating to the Trust. As used in this Agreement, the following
capitalized defined terms shall have the following meanings:
"ACT" or "SECURITIES ACT" means the Securities Act of 1933, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"AFFILIATE" of any specified person means any other person which,
directly or indirectly, is in control of, is controlled by, or is under common
control with, such specified person. For purposes of this definition, control
of a person means the power, direct or indirect, to direct or cause the
direction of the management and policies of such person whether by contract or
otherwise; the terms "controlling" and "controlled" have meanings correlative to
the foregoing.
"APPLICABLE RATE" means the rate at which the Preferred Securities
accrue distributions and the Debentures accrue interest. The Applicable Rate
shall be 5 3/4% per annum from the date of original issuance of the Preferred
Securities to (but excluding) the Reset Date. From the Reset Date, the
Applicable Rate will be the Term Rate established by the Remarketing Agent to be
effective on the Reset Date. The Applicable Rate will be increased upon the
occurrence of a Registration Default, as set forth in Section 7(a) hereof.
"BUSINESS DAY" means any day other than (i) a Saturday or Sunday, (ii)
a day on which banking institutions in The City of New York are authorized or
required by law or executive order to remain closed or (iii) a day on which the
corporate trust office of the Debenture Trustee or the Property Trustee is
closed for business.
"CLOSING DATE" has the meaning given such term in the Purchase
Agreement.
"COMMISSION" means the Securities and Exchange Commission.
"COMMON STOCK" has the meaning set forth in the first paragraph to
this Agreement.
"COMPANY" has the meaning set forth in the first paragraph to this
Agreement.
"DEBENTURES" has the meaning set forth in the first paragraph to this
Agreement.
"DEBENTURE TRUSTEE," "GUARANTEE TRUSTEE" and "PROPERTY TRUSTEE" each
means Wilmington Trust Company.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"GUARANTEE" means the guarantee by the Company of the Preferred
Securities pursuant to a Guarantee Agreement dated as of February 9, 2000
between the Company and the Guarantee Trustee.
"HOLDER" and "HOLDERS" each has the meaning set forth in the first
paragraph to this Agreement.
"INDEMNIFIED PARTIES" has the meaning set forth in Section 5(a)
hereof.
"INITIAL PLACEMENT" has the meaning set forth in the first paragraph
to this Agreement.
"MANAGING UNDERWRITERS" means the investment banker or investment
bankers and manager or managers that shall administer an underwritten offering,
if any, as set forth in Section 6 hereof.
"PARTICIPATING BROKER-DEALER" means any broker-dealer that is the
beneficial owner (as defined in Rule13d-3 under the Exchange Act) of Securities
received by such broker-dealer.
"PREFERRED SECURITIES" has the meaning set forth in the first
paragraph to this Agreement.
"PROSPECTUS" means the prospectus included in any Shelf Registration
Statement (including, without limitation, a prospectus that discloses
information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A under the Act), with respect to the terms
of the offering of any portion of the Securities covered by such Shelf
Registration Statement, as amended or supplemented by all amendments (including
post-effective amendments) and supplements to the Prospectus.
"PURCHASE AGREEMENT" has the meaning set forth in the first paragraph
to this Agreement.
"PURCHASERS" has the meaning set forth in the first paragraph to this
Agreement.
"REGISTRABLE SECURITIES" has the meaning specified in the Indenture.
"REGISTRATION DEFAULT" has the meaning given to such term in Section
7(a) hereof.
"REMARKETING AGENT" has the meaning specified in the Indenture.
"RESET DATE" means any date that is (i) not later than February 15,
2005 (or, if such day is not a Business Day, the next succeeding Business Day),
and (ii) not earlier than 70 Business Days prior to February 15, 2005, as may be
determined by the Remarketing Agent, in its sole discretion.
"SECURITIES" means the Preferred Securities, the Debentures, the
Common Stock and the Guarantee, individually and collectively.
"SHELF REGISTRATION" means a registration effected pursuant to Section
2 hereof.
"SHELF REGISTRATION PERIOD" has the meaning set forth in Section 2(b)
hereof.
"SHELF REGISTRATION STATEMENT" means a "shelf" registration statement
of the Trust and the Company pursuant to the provisions of Section 2 hereof
filed with the Commission which covers some or all of the Securities, as
applicable, on an appropriate form under Rule 415 under the Act, or any similar
rule that may be adopted by the Commission, amendments and supplements to such
registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"SUSPENSION PERIOD" has the meaning set forth in Section 7(b) hereof.
"TERM RATE" means the rate established by the Remarketing Agent (as
defined in the Indenture) in connection with the Remarketing (as defined in the
Indenture) at which interest will accrue on the Debentures and distributions
will accrue on the Preferred Securities on and after the Reset Date.
"TRUST" has the meaning set forth in the first paragraph to this
Agreement.
"TRUSTEE" means the Guarantee Trustee, the Debenture Trustee or the
Property Trustee, as applicable.
"UNDERWRITER" means any underwriter of Securities in connection with
an offering thereof under a Shelf Registration Statement.
(a) SHELF REGISTRATION. The Trust and the Company shall as promptly as
practicable prepare and, not later than the 75th day following the Closing Date,
shall file with the Commission and thereafter shall each use their best efforts
to cause to be declared effective under the Act as soon as practicable, but in
no event later than the 150th day following the Closing Date, a Shelf
Registration Statement relating to the offer and sale of the Securities by the
Holders from time to time in accordance with the methods of distribution elected
by such Holders and set forth in such Shelf Registration Statement.
(b) The Trust and the Company shall each use its best efforts
(i) to keep the Shelf Registration Statement continuously
effective in order to permit the Prospectus forming part thereof to be
usable by Holders until resale of the Securities is permitted pursuant
to Rule 144(k) under the Securities Act or any successor rule or
regulation thereto after the date the Shelf Registration Statement is
declared effective or such shorter period that will terminate upon the
earlier of the following:
(1) when all the Preferred Securities covered by the Shelf
Registration Statement have been sold pursuant to the Shelf
Registration Statement;
(2) when all Debentures issued to Holders in respect of
Preferred Securities that had not been sold pursuant to the Shelf
Registration Statement have been sold pursuant to the Shelf
Registration Statement; or
(3) when all shares of Common Stock issued upon conversion
of any such Preferred Securities or any such Debentures that had
not been sold pursuant to the Shelf Registration Statement have
been sold pursuant to the Shelf Registration Statement (in any
such case, such period being called the "Shelf Registration
Period"); and
(ii) after the effectiveness of the Shelf Registration Statement,
promptly upon the request of any Holder to take any action reasonably
necessary to register the sale of any Securities of such Holder and to
identify such Holder as a selling securityholder.
2. REGISTRATION PROCEDURES. In connection with any Shelf Registration
Statement, the following provisions shall apply:
(a) The Trust and the Company shall furnish to the Purchasers and any
other Holders who so request, and their respective counsel and accountants,
prior to the filing thereof with the Commission, a copy of any Shelf
Registration Statement, and each amendment thereof and each amendment or
supplement, if any, to the Prospectus included therein and shall each use
its best efforts to reflect in each such document, when so filed with the
Commission, such comments as the Purchasers and such other Holders
reasonably may propose.
(b) The Trust and the Company shall take such action as may be
necessary so that (i) any Shelf Registration Statement and any amendment
thereto and any Prospectus forming part thereof and any amendment or
supplement thereto (and each report or other document incorporated therein
by reference in each case) complies in all material respects with the
Securities Act and the Exchange Act and the respective rules and
regulations thereunder, (ii) any Shelf Registration Statement and any
amendment thereto does not, when it becomes effective, contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading and (iii) any Prospectus forming part of any Shelf Registration
Statement, and any amendment or supplement to such Prospectus, does not,
during the Shelf Registration Period, include an untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements, in the light of the circumstances under which they were
made, not misleading.
(i) The Company shall advise the Purchasers and the Holders and, if
requested by the Purchasers or any such Holder, confirm such advice in
writing:
(1) when a Shelf Registration Statement and any amendment
thereto has been filed with the Commission and when the Shelf
Registration Statement or any post-effective amendment thereto
has become effective; and
(2) of any request by the Commission for amendments or
supplements to the Shelf Registration Statement or the Prospectus
included therein or for additional information.
(ii) The Trust and the Company shall advise the Purchasers and
the Holders and, if requested by the Purchasers or any such Holder,
confirm such advice in writing:
(1) of the issuance by the Commission of any stop order
suspending the effectiveness of the Shelf Registration Statement
or the initiation of any proceedings for that purpose;
(2) of the receipt by the Trust or the Company of any
notification with respect to the suspension of the qualification
of the Securities included therein for sale in any state or the
initiation or threatening of any proceeding for such purpose; and
(3) of the happening, during the Shelf Registration Period,
of any event that requires the making of any changes in the Shelf
Registration Statement or the Prospectus so that, as of such
date, the Registration Statement and the Prospectus do not
contain an untrue statement of a material fact and do not omit to
state a material fact required to be stated therein or necessary
to make the statements therein (in the case of the Prospectus, in
light of the circumstances under which they were made) not
misleading (which advice shall be accompanied by an instruction
to suspend the use of the Prospectus until the requisite changes
have been made).
(c) Each of the Trust and the Company shall use its best efforts to
prevent the issuance, and if issued to obtain the withdrawal, of any order
suspending the effectiveness of any Shelf Registration Statement at the
earliest possible time.
(d) The Trust and the Company shall furnish to each Holder of
Securities included within the coverage of any Shelf Registration
Statement, without charge, at least one copy of such Shelf Registration
Statement and any post-effective amendment thereto (including any reports
or other documents incorporated therein by reference), including financial
statements and schedules, and, if the Holder so requests in writing, all
exhibits (including those incorporated by reference).
(e) The Trust and the Company shall, during the Shelf Registration
Period, deliver to each Holder of Securities included within the coverage
of any Shelf Registration Statement, without charge, as many copies of the
Prospectus (including each preliminary Prospectus) included in such Shelf
Registration Statement and any amendment or supplement thereto as such
Holder may reasonably request; and each of the Trust and the Company
consents to the use of the Prospectus or any amendment or supplement
thereto by each of the selling Holders of Securities in connection
with the offering and sale of the Securities covered by the Prospectus or
any amendment or supplement thereto during the Shelf Registration Period.
(f) Prior to any offering of Securities pursuant to any Shelf
Registration Statement, the Trust and the Company shall register or qualify
or cooperate with the Holders of Securities included therein and their
respective counsel in connection with the registration or qualification of
such Securities for offer and sale under the securities or blue sky laws of
such states as any such Holders reasonably request in writing and do any
and all other acts or things necessary or advisable to enable the offer and
sale in such states of the Securities covered by such Shelf Registration
Statement; provided, however, that neither the Trust nor the Company will
be required to qualify generally to do business in any jurisdiction where
it is not then so qualified or to take any action which would subject it to
general service of process or to taxation in any such jurisdiction where it
is not then so subject.
(g) Unless the applicable Securities shall be in book-entry only
form, the Trust and the Company shall cooperate with the Holders of
Securities to facilitate the timely preparation and delivery of
certificates representing Securities to be sold pursuant to any Shelf
Registration Statement free of any restrictive legends and in such
permitted denominations and registered in such names as Holders may request
in connection with the sale of Securities pursuant to such Shelf
Registration Statement.
(h) Upon the occurrence of any event contemplated by Section
3(c)(i)(2) or 3(c)(ii)(3) above, the Trust and the Company shall promptly
prepare a post-effective amendment to any Shelf Registration Statement or
an amendment or supplement to the related Prospectus or file any other
required document so that, as thereafter delivered to purchasers of the
Securities included therein, the Prospectus will not include an untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading. If the Trust or the Company notifies
the Holders of the occurrence of any event contemplated by Section
3(c)(ii)(3) above, the Holders shall suspend the use of the Prospectus
until the requisite changes to the Prospectus have been made.
(i) Not later than the effective date of any Shelf Registration
Statement hereunder, the Trust and the Company shall provide a CUSIP number
for the Preferred Securities and, in the event of and at the time of any
distribution thereof to Holders, the Debentures, registered under such
Shelf Registration Statement, and provide the applicable Trustee with
certificates for such Securities, in a form eligible for deposit with The
Depository Trust Company.
(j) The Trust and the Company shall use their best efforts to comply
with all applicable rules and regulations of the Commission and shall
make generally available to their securityholders or otherwise in
accordance with Section 11(a) of the Securities Act as soon as practicable
after the effective date of the applicable Shelf Registration Statement an
earning statement satisfying the provisions of Section 11(a) of the
Securities Act.
(k) The Trust and the Company shall cause the Indenture, the
Declaration and the Guarantee to be qualified under the Trust Indenture Act
in a timely manner.
(l) The Trust and the Company may require each Holder of Securities
to be sold pursuant to any Shelf Registration Statement to furnish to the
Trust and the Company such information regarding the Holder and the
distribution of such Securities as the Trust and the Company may from time
to time reasonably require for inclusion in such Shelf Registration
Statement.
(m) The Trust and the Company shall, if requested, promptly
incorporate in a Prospectus supplement or post-effective amendment to a
Shelf Registration Statement, such information as the Managing Underwriters
reasonably agree should be included therein and to which the Trust and the
Company do not reasonably object and shall make all required filings of
such Prospectus supplement or post-effective amendment as soon as
practicable after they are notified of the matters to be incorporated in
such Prospectus supplement or post-effective amendment.
(n) The Trust and the Company shall enter into such customary
agreements (including underwriting agreements in customary form) to take
all other appropriate actions in order to expedite or facilitate the
registration or the disposition of the Securities, and in connection
therewith, if an underwriting agreement is entered into, cause the same to
contain indemnification provisions and procedures substantially identical
to those set forth in Section 5 hereof (or such other customary provisions
and procedures acceptable to the Managing Underwriters, if any) with
respect to all parties to be indemnified pursuant to Section 5 hereof.
(o) The Trust and the Company shall (i) make reasonably available for
inspection by the Holders of Securities to be registered thereunder, any
underwriter participating in any disposition pursuant to such Shelf
Registration Statement, and any attorney, accountant or other agent
retained by such Holders or any such underwriter, all relevant financial
and other records, pertinent corporate documents and properties of the
Trust and the Company and its subsidiaries as shall be requested in
connection with the discharge of their due diligence obligations; (ii)
cause the Company's officers, directors, employees and independent public
accountants and any relevant Trustees to supply at the Company's expense
all relevant information reasonably requested by such Holders or any such
underwriter, attorney, accountant or agent in connection with any such
Shelf Registration Statement as is customary for similar due diligence
examinations; provided, however,
that any information that is designated in writing by the Trust and the
Company in good faith as confidential at the time of delivery of such
information shall be kept confidential by such Holders or any such
underwriter, attorney, accountant or agent, unless such disclosure is made
in connection with a court proceeding or required by law, or such
information becomes available to the public generally or through a third
party without an accompanying obligation of confidentiality; and provided
further that the foregoing inspection and information gathering shall, to
the greatest extent possible, be coordinated on behalf of the Holders and
the other parties entitled thereto by one counsel designated by and on
behalf of such Holders and other parties; (iii) to the extent requested,
make such representations and warranties to the Holders of Securities
registered thereunder and the underwriters, if any, in form, substance and
scope as are customarily made by the issuers to underwriters in primary
underwritten offerings and covering matters as are customarily covered in
representation and warranties requested in primary underwritten offerings
including, but not limited to, those set forth in the Purchase Agreement;
(iv) to the extent requested, obtain opinions of counsel to the Trust and
the Company and updates thereof (which counsel and opinions (in form, scope
and substance) shall be reasonably satisfactory to the Managing
Underwriters, if any) addressed to each selling Holder and the
underwriters, if any, covering such matters and with such exceptions as are
customarily covered or taken in opinions requested in underwritten
offerings and such other matters as may be reasonably requested by such
Holders and underwriters (it being agreed that the matters to be covered by
such opinion shall include, without limitation, as of the date of the
opinion and as of the effective date of the Shelf Registration Statement or
most recent post-effective amendment thereto, as the case may be, a
statement by such counsel regarding the absence from such Shelf
Registration Statement and the prospectus included therein, as then amended
or supplemented, including the documents incorporated by reference therein,
of an untrue statement of a material fact or the omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading); (v) to the extent requested, obtain
"cold comfort" letters and updates thereof from the independent certified
public accountants of the Company (and, if necessary, any other independent
certified public accountants of any subsidiary of the Company or of any
business acquired by the Company for which financial statements and
financial data are, or are required to be, included in the Shelf
Registration Statement), addressed to each such Holder of Securities
registered thereunder and the underwriters, if any, in customary form and
covering matters of the type customarily covered in "cold comfort" letters
in connection with primary underwritten offerings; and (vi) deliver such
documents and certificates as may be reasonably requested by any such
Holders and the Managing Underwriters, if any, including those to evidence
compliance with Section 3(i) and with any customary conditions contained in
the underwriting agreement or other agreement entered into by the Trust and
the Company. The foregoing actions set forth in clauses (iii), (iv), (v)
and (vi) of this Section 3(p), to the extent
requested, shall be performed at (A) the effectiveness of such Shelf
Registration Statement and each post-effective amendment thereto and (B)
each closing under any underwritten offering to the extent required under
any related underwriting or similar agreement.
(p) Each of the Trust and the Company will use its best efforts to
cause the Common Stock relating to such Shelf Registration Statement to be
listed on each securities exchange, over-the-counter market, or respective
counterpart if any, on which any shares of Common Stock are then listed.
(q) The Trust and the Company shall, in the event that any broker-
dealer registered under the Exchange Act shall underwrite any Securities or
participate as a member of an underwriting syndicate or selling group or
"assist in the distribution" (within the meaning of the Rules of Fair
Practice and the By-Laws of the National Association of Securities Dealers,
Inc. ("NASD")) thereof, whether as a Holder of such Securities or as an
underwriter, a placement or sales agent or a broker or dealer in respect
thereof, or otherwise, assist such broker-dealer in complying with the
requirements of such Rules and By-Laws, including, without limitation, by
(A) if such Rules or By-Laws, including Schedule E thereto, shall so
require, engaging a "qualified independent underwriter" (as defined in such
Schedule) to participate in the preparation of the Shelf Registration
Statement relating to such Securities, to exercise usual standards of due
diligence in respect thereto, (B) indemnifying any such qualified
independent underwriter to the extent of the indemnification of
underwriters provided in Section 5 hereof and (C) providing such
information to such broker-dealer as may be required in order for such
broker-dealer to comply with the requirements of the Rules of Fair Practice
of the NASD.
(r) The Trust and the Company shall use their best efforts to take
all other steps necessary to effect the registration, offering and sale of
the Securities covered by the Shelf Registration Statement contemplated
hereby.
3. REGISTRATION EXPENSES. Except as otherwise provided in Section 6, the
Company shall bear all fees and expenses incurred in connection with the
performance of the obligations of the Company and the Trust under Sections 2 and
3 hereof and shall bear, or reimburse the Purchasers or the Holders for, the
reasonable fees and disbursements of one counsel designated in connection with
the filing of the Shelf Registration Statement. Notwithstanding anything to the
contrary herein contained, each Holder of Securities shall pay all registration
expenses to the extent required by applicable law.
4. INDEMNIFICATION. (a) The Trust and the Company, jointly and severally
agree, to indemnify and hold harmless each Holder of the Securities, any
Participating Broker-Dealer and each person, if any, who controls such Holder or
such Participating Broker-Dealer within the meaning of the Securities Act or the
Exchange Act (each Holder, any Participating Broker-Dealer and such controlling
persons are referred to collectively as the "INDEMNIFIED PARTIES") from and
against any losses, claims, damages or liabilities, joint or several, or any
actions in respect thereof (including, but not limited to, any losses, claims,
damages, liabilities or actions relating to purchases and sales of the
Securities) to which each Indemnified Party may become subject under the
Securities Act, the Exchange Act or otherwise, insofar as such losses, claims,
damages, liabilities or actions arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the Shelf
Registration Statement as originally filed or in an amendment thereof, or in any
preliminary prospectus relating to a Shelf Registration, or arise out of, or are
based upon, the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and shall reimburse, as incurred, the Indemnified Parties for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action in
respect thereof; PROVIDED, HOWEVER, that (i) the Trust and the Company shall not
be liable in any such case to the extent that such loss, claim, damage or
liability arises out of or is based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in the Shelf Registration
Statement as originally filed or in an amendment thereof, or in any preliminary
prospectus relating to a Shelf Registration Statement in reliance upon and in
conformity with written information pertaining to any Holder and furnished to
the Trust or the Company by or on behalf of any Holder specifically for
inclusion therein and (ii) with respect to any untrue statement or omission or
alleged untrue statement or omission made in any preliminary prospectus relating
to a Shelf Registration Statement, the indemnity agreement contained in this
paragraph (a) shall not inure to the benefit of any Holder or Participating
Broker-Dealer from whom the person asserting any such losses, claims, damages or
liabilities purchased the Securities concerned, to the extent that a prospectus
relating to such Securities was required to be delivered by such Holder or
Participating Broker-Dealer under the Securities Act in connection with such
purchase and any such loss, claim, damage or liability of such Holder or
Participating Broker-Dealer results from the fact that there was not sent or
given to such person, at or prior to the written confirmation of the sale of
such Securities to such person, a copy of the final prospectus if the Trust or
the Company had previously furnished copies thereof to such Holder or
Participating Broker-Dealer; PROVIDED FURTHER, HOWEVER, that this indemnity
agreement will be in addition to any liability which the Trust or the Company
may otherwise have to such Indemnified Party. The Trust and the Company shall
also indemnify underwriters, their officers and directors and each person who
controls such underwriters within the meaning of the Securities Act or the
Exchange Act to the same extent as provided above with respect to the
indemnification of the Holders of the Securities if requested by such Holders.
(b) Each Holder of the Securities, severally and not jointly, will
indemnify and hold harmless the Trust, the Trustee, the Company, each of the
directors of the Company, each of the officers of the Company who signs such
Shelf Registration Statement and each person, if any, who controls the Trust or
the Company within the meaning of the Securities Act or the Exchange Act from
and against any losses, claims, damages or liabilities or any actions in respect
thereof, to which the
Company, the Trust, the Trustee, each of the directors of the Company, each of
the officers of the Company who signs such Shelf Registration Statement or any
person who controls the Trust or the Company may become subject under the
Securities Act, the Exchange Act or otherwise, insofar as such losses, claims,
damages, liabilities or actions arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the Shelf
Registration Statement as originally filed or in an amendment thereof, or in any
preliminary prospectus relating to a Shelf Registration Statement, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact necessary to make the statements therein not misleading, but in
each case only to the extent that the untrue statement or omission or alleged
untrue statement or omission was made in reliance upon and in conformity with
written information pertaining to such Holder and furnished to the Trust or the
Company by or on behalf of such Holder specifically for inclusion therein; and,
subject to the limitation set forth immediately preceding this clause, shall
reimburse, as incurred, the Trust, the Trustee, the Company, each of the
directors of the Company, each of the officers of the Company who signs such
Shelf Registration Statement or any person who controls the Trust or the Company
for any legal or other expenses reasonably incurred by the Trust, the Trustees,
the Company, each of the directors of the Company, each of the officers of the
Compay who signs such Shelf Registration Statement or any such controlling
person in connection with investigating or defending any loss, claim, damage,
liability or action in respect thereof. This indemnity agreement will be in
addition to any liability which such Holder may otherwise have to the Company,
the Trust, the Trustees, each of the directors of the Company, each of the
officers of the Company who signs such Shelf Registration Statement or any
person who controls the Trust or the Company.
(c) Promptly after receipt by an indemnified party under this Section 5 of
notice of the commencement of any action or proceeding (including a governmental
investigation), such indemnified party will, if a claim in respect thereof is to
be made against the indemnifying party under this Section 5, notify the
indemnifying party of the commencement thereof; but the omission so to notify
the indemnifying party will not, in any event, relieve the indemnifying party
from any obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above. In case any such action is
brought against any indemnified party, and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party (who shall not, except with the consent
of the indemnified party, be counsel to the indemnifying party), and after
notice from the indemnifying party to such indemnified party of its election so
to assume the defense thereof the indemnifying party will not be liable to such
indemnified party under this Section 5 for any legal or other expenses, other
than reasonable costs of investigation, subsequently incurred by such
indemnified party in connection with the defense thereof. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder
by such indemnified party unless such settlement includes an unconditional
release of such indemnified party from all liability on any claims that are the
subject matter of such action, and does not include a statement as to or an
admission of fault, culpability or a failure to act by or on behalf of any
indemnifid party.
(d) If the indemnification provided for in this Section 5 is unavailable
or insufficient to hold harmless an indemnified party under paragraphs (a) or
(b) above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to in paragraph (a) or (b)
above (i) in such proportion as is appropriate to reflect the relative benefits
received by the indemnifying party or parties on the one hand and the
indemnified party on the other from the Initial Placement and the Shelf
Registration Statement, or (ii) if the allocation provided by the foregoing
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the indemnifying party or parties on the
one hand and the indemnified party on the other in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities (or actions in respect thereof) as well as any other relevant
equitable considerations. The relative fault of the parties shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or the Trust, on
the one hand, or such Holder or such other indemnified party, as the case may
be, on the other, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The amount paid by an indemnified party as a result of the losses, claims,
damages or liabilities referred to in the first sentence of this paragraph (d)
shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any action
or claim which is the subject of this paragraph (d). Notwitstanding any other
provision of this Section 5(d), the Holders of the Securities shall not be
required to contribute any amount in excess of the amount by which the net
proceeds received by such Holders from the sale of the Securities pursuant to
the Shelf Registration Statement exceeds the amount of damages which such
Holders have otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this paragraph
(d), each person, if any, who controls such indemnified party within the meaning
of the Securities Act or the Exchange Act shall have the same rights to
contribution as such indemnified party and each of the directors of the Company,
each of the officers of the Company who signs such Shelf Registration Statement,
and each person, if any, who controls the Company within the meaning of the
Securities Act or the Exchange Act shall have the same rights to contribution as
the Company and each person, if any, who controls the Trust within the meaning
of the Securities Act or the Exchange Act shall have the same rights to
contribution as the Trust.
(e) The agreements contained in this Section 5 shall survive the sale of
the Securities pursuant to a Registration Statement and shall remain in full
force and effect, regardless of any termination or cancellation of this
Agreement or any investigation made by or on behalf of any indemnified party.
5. UNDERWRITTEN OFFERING. If, pursuant to written notice delivered to
the Company by the Holders of a majority in aggregate liquidation amount of the
Preferred Securities, a majority in aggregate principal amount of the Debentures
or a majority of Holders of the Common Stock, as the case may be, registered
pursuant to a Shelf Registration, such Holders so elect, the offer and sale of
any such Preferred Securities, Debentures and/or Common Stock may be effected in
the form of an underwritten offering. In any such underwritten offering, the
investment banker or bankers and manager or managers that will administer the
offering will be selected by, and the underwriting arrangements with respect
thereto will be approved by, the Company; provided, however, that such
investment bankers and managers and underwriting arrangements must be reasonably
satisfactory to the Holders of a majority of the Securities to be included in
such offering. The Company shall not, in any event, be obligated to arrange for
more than one underwritten offering during the Shelf Registration Period. No
Holder may participate in any underwritten offering contemplated hereby unless
(i) such Xxxxxx (a) agrees to sell such Xxxxxx's Securities in accordance with
any approved underwriting arrangements, (b) completes and executes all
reasonable questionnaires, powers of attorney, indemnities, underwriting
agreements, lock-up letters and other documents required under the terms of such
approved underwriting arrangements and (ii) at least 20% of the outstanding
Securities are included in such underwritten offering. The Holders
participating in any underwritten offering shall be responsible for any expenses
customarily borne by selling securityholders, including underwriting discounts
and commissions and fees and expenses of counsel to the selling securityholders
and shall reimburse the Trust and the Company for the fees and disbursements of
their counsel, their independent public accountants and any printing expenses
incurred in connection with such underwritten offering. Notwithstanding the
foregoing or the provisions of Section 3(n) hereof, upon receipt of a request
from the Managing Underwriter or a representative of Holders of a majority of
the Securities outstanding to prepare and file an amendment or supplement to the
Shelf Registration Statement and Prospectus in connection with an underwritten
offering, the Company may delay the filing of any such amendment or supplement
for up to 90 days if the Company in good faith has a valid business reason for
such delay.
(a) CHANGES TO THE APPLICABLE RATE UNDER CERTAIN CIRCUMSTANCES. The
Applicable Rate at which interest is paid on the Debentures (including in
respect of amounts accruing during any Deferral Period), and distributions are
paid on the Preferred Securities shall be adjusted as follows, if any of the
following events occur (each such event in clauses (i) through (iii) below, a
"Registration Default"):
(i) if a Shelf Registration Statement is not filed with the
Commission on or prior to the 75th day following the Closing Date;
(ii) if the Shelf Registration Statement is not declared
effective on or prior to the 150th day following the Closing Date;
(iii) if (1) after the Shelf Registration Statement is declared
effective, such Shelf Registration Statement ceases to be effective
prior to the end of the Shelf Registration Period (except as permitted
in paragraph (b) of this Section 7) or (2) such Shelf Registration
Statement or the related Prospectus ceases to be usable in connection
with resales of Securities covered by such Shelf Registration
Statement prior to the end of the Shelf Registration Period (except as
permitted in paragraph (b) of this Section 7) because either (A) any
event occurs as a result of which the related Prospectus forming part
of such Shelf Registration Statement would include any untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein in light of the circumstances
in which they were made not misleading or (B) it shall be necessary to
amend such Shelf Registration Statement, or supplement the related
Prospectus, to comply with the Securities Act or the Exchange Act or
the respective rules thereunder.
The Applicable Rate will increase following the occurrence of each
Registration Default set forth in clauses (i), (ii) and (iii) above from and
including the next day following each such Registration Default, in each case by
.50% per annum of the principal amount or liquidation amount, as applicable, of
the Securities without prejudice to any other claim that any Holder may have for
any failure by the Company to obtain or maintain continuous effectiveness of a
Shelf Registration Statement in accordance with the terms of this Registration
Agreement. The increase in the Applicable Rate attributable to each
Registration Default shall cease to be effective from the date such Registration
Default is cured, and the Applicable Rate shall be reduced at such time to the
Applicable Rate in effect immediately prior to such Registration Default;
provided, however, in the event a Registration Default occurs prior to the Reset
Date and is cured on or after the Reset Date, the Applicable Rate shall be the
Term Rate from the date such Registration Default is cured.
(b) Notwithstanding anything in Section 7(a) to the contrary, the
Company may prohibit offers and sales of Registrable Securities at any time
if
(i) (1) it is in possession of material non-public information,
(2)(A) the Board of Directors of the Company or (B) the Chief
Financial Officer and the General Counsel of the Company, determine in
good faith that disclosure of such material non-public information at
such time would not be in the best interests of the Company, and
(3)(A) the Chief Executive Officer of the Company or (B) the Chief
Financial Officer and the General Counsel of the Company, determine
that such prohibition is necessary in order to
avoid a requirement to disclose such material non-public information;
or
(ii) the Company has made a public announcement relating to an
acquisition or business combination transaction including the Company
and/or one or more of its subsidiaries (1) that is material to the
Company and its subsidiaries taken as a whole (and for such purpose no
transaction shall be deemed material unless, on a pro forma basis and
after giving effect thereto, consolidated assets or consolidated
revenues of the Company and its subsidiaries as of the end of or for
the most recently completed fiscal year would be increased by at least
20%) and (2) the Board of Directors of the Company or the Chief
Executive Officer or the Chief Financial Officer of the Company
determines in good faith that offers and sales of Registrable
Securities prior to the consummation of such transaction (or such
earlier date as the Board of Directors or the Chief Executive Officer
or the Chief Financial Officer of the Company shall determine) is not
in the best interests of the Company;
provided that during any period of prohibition neither the Company nor any other
Person to whom the Company shall have given registration rights with respect to
shares of Common Stock shall be entitled to make offers and sales of Common
Stock pursuant to a registration statement filed under the Securities Act, other
than pursuant to an employee stock purchase plan, stock option or other employee
benefit plan or a dividend re-investment plan of the Company (each period during
which any prohibition of offers and sales of Registrable Securities is in effect
pursuant to clause (i) or (ii) of this Section 7(b) is referred to herein as a
"Suspension Period").
A Suspension Period shall commence on and include the date on which
the Company provides written notice to Holders of Registrable Securities that
offers and sales of Registrable Securities cannot be made in accordance with
this Section 7(b) and shall end on the date on which each such Holder of
Registrable Securities either receives copies of a prospectus supplement, or is
advised in writing by the Company that offers and sales of Registrable
Securities and use of the Prospectus may be resumed; provided, however, that all
Suspension Periods pursuant to clause (i) of this Section 7(b) in the aggregate
shall not exceed 60 days during any period of twelve consecutive calendar months
(nor more than 20 consecutive days for any one Suspension Period) and each
Suspension Period shall be followed by at least ten Business Days during which
no Suspension Period is in effect.
(c) A Registration Default referred to in Section 7(a)(iii) shall be
deemed not to have occurred and be continuing in relation to the Shelf
Registration Statement or the related Prospectus if (i) such Registration
Default has occurred solely as a result of (1) the filing of a
post-effective amendment to such Shelf Registration Statement to
incorporate annual audited financial information with respect to the
Company where such post-effective amendment is not yet effective and needs
to be declared effective to
permit Holders to use the related Prospectus or (2) the occurrence of other
material events or developments with respect to the Trust or the Company
that would need to be described in such Registration Statement or the
related Prospectus and (ii) in the case of clause (2), the Trust and the
Company are proceeding promptly and in good faith to amend or supplement
such Registration Statement and related Prospectus to describe such events;
provided, however, that in any case, if such Registration Default occurs
for a continuous period in excess of 45 days, the Applicable Rate shall
increase by .50% per annum of the principal amount or the liquidation
amount, as applicable, in accordance with paragraph (a) above from the
first day of such 45-day period until the date on which such Registration
Default is cured.
6. MISCELLANEOUS.
(a) No Inconsistent Agreements. The Trust and the Company have not,
as of the date hereof, entered into, nor shall they on or after the date
hereof, enter into, any agreement with respect to their securities or
otherwise that is inconsistent with the rights granted to the Holders
herein or otherwise conflicts with the provisions hereof.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, qualified,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Trust and the Company have
obtained the written consent of the Purchasers.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class
mail, telex, telecopier, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the most current address given by such
Holder to the Company in accordance with the provisions of this
Section 8(c), which address initially is, with respect to each Holder,
the address of such Holder maintained by the Registrar under the
Indenture, with respect to the Debentures, or the Declaration, with
respect to the Preferred Securities, with a copy in a like manner to
Credit Suisse First Boston Corporation;
(ii) if to the Purchasers, initially at the address set forth in
the Purchase Agreement; and
(iii) if to the Trust or the Company, initially at its address set
forth in the Purchase Agreement.
All such notices and communications shall be deemed to have been duly
given when received.
The Purchaser or the Trust and the Company by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties and the Holders, including, without the need for an express
assignment or any consent by the Trust or the Company thereto, subsequent
Holders of Securities. The Trust and the Company hereby agree to extend
the benefits of this Agreement to any Holder of Securities and any such
Holder may specifically enforce the provisions of this Agreement as if an
original party hereto.
(e) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(f) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Applicable Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York without
regard to principles of conflicts of laws.
(h) Severability. In the event that any one of more of the
provisions contained herein, or the application thereof in any
circumstances, is held invalid, illegal or unenforceable in any respect for
any reason, the validity, legality and enforceability of any such provision
in every other respect and of the remaining provisions hereof shall not be
in any way impaired or affected thereby, it being intended that all of the
rights and privileges of the parties shall be enforceable to the fullest
extent permitted by law.
Please confirm that the foregoing correctly sets forth the agreement
between the Company, the Trust and you.
Very truly yours,
TITAN CAPITAL TRUST
By: _______________________________
Name:
Title: Administrative Trustee, solely in a
capacity as trustee and not in an
individual capacity
THE TITAN CORPORATION
By: _______________________________
Name:
Title:
The foregoing Registration Rights Agreement
is hereby confirmed and accepted as of
the date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
By: CREDIT SUISSE FIRST BOSTON CORPORATION
Acting on behalf of itself and as the
representative of Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation
By: _________________________
Name:
Title:
