EXHIBIT 4.3
[Execution Copy]
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REGISTRATION RIGHTS AGREEMENT
by and among
AGERE SYSTEMS INC.
and
U.S. TRUST COMPANY, N.A.,
as investment manager of certain assets held by the
AGERE SYSTEMS INC. MASTER TRUST
Dated as of March 14, 2003
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This REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into as of March 14, 2003, by and between Agere Systems Inc., a
Delaware corporation, with offices located at 0000 Xxxxxxxx Xxxxxxx NE, Lehigh
Valley Central Campus, Xxxxxxxxx, XX 00000 (the "Company") and U.S. Trust
Company, N.A. (the "Investment Manager"), as investment manager of certain
assets held by the Agere Systems Inc. Master Trust (the "Master Trust").
R E C I T A L S
WHEREAS, the Master Trust for the Agere Systems Inc. Represented
Pension Plan will receive a voluntary contribution from the Company of
18,750,000 shares of the Company's Class A common stock (the "Common Shares").
WHEREAS, pursuant to an Investment Management Agreement dated as of
March 14, 2003, the Investment Committee of the Company has appointed
U.S. Trust Company, N.A. to act as an independent fiduciary with respect to
certain assets held by the Master Trust and to make all decisions regarding
such assets.
WHEREAS, the Common Shares will be among the assets managed by the
Investment Manager.
WHEREAS, in order to induce (a) the Investment Committee of the
Company to accept the contribution and (b) U.S. Trust Company, N.A. to act as
an independent fiduciary with respect to certain assets held by the Master
Trust and to make all decisions regarding such assets, the Company has agreed
to provide the registration rights set forth in this Agreement;
NOW THEREFORE, in consideration of the mutual covenants and
undertakings contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, and subject to
and on the terms and conditions herein set forth, the parties hereto agree as
follows:
1. Definitions
As used in this Agreement, the following capitalized terms shall have
the following meanings:
"Broker-Dealer" means any broker or dealer registered as such under
the Exchange Act.
"Business Day" shall mean any day except Saturday, Sunday and any day
that is in New York City a legal holiday or a day on which banking
institutions or securities exchanges are authorized or required by law or
other governmental action to close.
"Common Shares" shall have the meaning set forth in first recital
hereto.
"Common Stock" shall mean all of the Company's authorized and issued
Class A common stock, par value $.01 per share, and Class B common stock, par
value $.01 per share, as may be outstanding from
time to time and such other classes of common stock as may be authorized by
the Company's certificate of incorporation and issued.
"Company" shall have the meaning set forth in the preamble hereto.
"Demand Registration Notice" shall have the meaning set forth in
Section 2(a).
"Demand Registration Rights Limit" shall have the meaning set forth
in Section 2(b) hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, any rules and regulations promulgated thereunder, and any successor
thereto, all as the same shall be in effect from time to time.
"Investment Manager" shall have the meaning set forth in the preamble
hereto.
"Losses" shall have the meaning set forth in Section 7(a) hereof.
"Master Trust" shall have the meaning set forth in the preamble
hereto.
"NASD" shall mean the National Association of Securities Dealers, Inc.
"Opinion of Counsel" shall mean a written opinion of counsel, who may
be an employee of or counsel for the Company and who shall be reasonably
acceptable to the Investment Manager, acting on behalf of the Master Trust.
"Person" shall mean an individual, firm, limited liability company or
partnership, joint venture, corporation, joint stock company, trust or
unincorporated organization, incorporated or unincorporated association,
government (or any department, agency or political subdivision thereof) or
other entity of any kind, and shall include any successor (by merger or
otherwise) of such entity.
"Piggyback Registration" shall have the meaning set forth in Section
3(a) hereof.
"Proposed Registration" shall have the meaning set forth in Section
3(a) hereof.
"Prospectus" shall mean the prospectus included in any Registration
Statement, all amendments and supplements to such prospectus and all material
incorporated by reference in such prospectus.
"Registration Expenses" shall have the meaning set forth in Section 6
hereof.
"Registrable Securities" shall mean all or any portion of the Common
Shares and any securities that may be issued or distributed
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or be issuable in respect thereof by way of stock dividend, stock split or
other distribution, merger, consolidation, exchange offer, recapitalization or
reclassification or similar transaction or exercise or conversion of any of
the foregoing; provided, however, any such security shall cease to be a
Registrable Security when:
(i) a Registration Statement with respect to the sale of
such security shall have been declared effective under the Securities
Act and such security shall have been disposed of in accordance with
such Registration Statement,
(ii) the holding period for such security pursuant to Rule
144(d) has elapsed with respect to the Master Trust and the
Investment Manager, acting on behalf of the Master Trust, may sell
such securities subject to Rule 144(e)(i), or
(iii) the Company has received an Opinion of Counsel or such
other evidence reasonably satisfactory to each of the Company and the
Investment Manager, acting on behalf of the Master Trust, that such
security may otherwise be publicly resold without registration or
qualification under the Securities Act.
"Registration Statement" shall mean any registration statement of the
Company filed with, or to be filed with, the SEC under the rules and
regulations promulgated under the Securities Act that registers or may be used
to register Registrable Securities pursuant to the provisions of this
Agreement, amendments to such Registration Statement, including post-effective
amendments, and including the Prospectus contained therein, and any amendments
or supplements thereto, and all exhibits and all material incorporated or
deemed incorporated by reference in such Registration Statement or Prospectus.
"Rule 144" means Rule 144 (or any successor provision), including any
amendments thereto, under the Securities Act, as the same may be in effect
from time to time.
"Securities Act" shall mean the Securities Act of 1933, as amended,
and any rules and regulations promulgated thereunder, and any successor
thereto, all as the same may be in effect from time to time.
"SEC" shall mean the Securities and Exchange Commission.
"Shelf Registration Statement" means a Registration Statement on Form
S-3 (or any successor form or other appropriate form under the Securities Act)
for an offering to be made on a delayed or continuous basis pursuant to Rule
415 of the Securities Act (or any similar rule that may be adopted by the
SEC).
"Suspension Period" shall have the meaning set forth in Section 2(f)
hereof.
"Suspension Notice" shall have the meaning set forth in Section 2(f)
hereof.
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"Underwritten Offering" shall mean a registration in which securities
of the Company are sold to an underwriter on a firm commitment basis for
reoffering to the public.
2. Demand Registrations
(a) Notice. Subject to the provisions of the next paragraph, the
Investment Manager, acting on behalf of the Master Trust, may at any time make
a written request (a "Demand Registration Notice") to the Company for
registration with the SEC under and in accordance with the provisions of the
Securities Act of all or a part of its Registrable Securities. All requests
made pursuant to this paragraph will specify the aggregate number of
Registrable Securities to be registered and will also specify the intended
methods of disposition thereof, including whether the sale or transfer of
Registrable Securities shall be in the form of an Underwritten Offering.
Unless the Company delivers a Suspension Notice pursuant to Section 2(f)
hereof or no Registrable Securities remain outstanding, upon receipt of a
Demand Registration Notice:
(i) if no Shelf Registration Statement is on file with the
SEC and currently effective, the Company shall file a Registration
Statement relating to such Demand Registration Notice no later than
fifteen Business Days (or such later date as the Corporation and the
Investment Manager, acting on behalf of the Master Trust, may agree)
after receipt of such Demand Registration Notice and use all
reasonable efforts to cause such Registration Statement to be
declared effective under the Securities Act, or
(ii) if a Shelf Registration Statement is on file with the
SEC and currently effective, the Company shall within fifteen
Business Days (or such later date as the Company and the Investment
Manager, acting on behalf of the Master Trust, may agree) make any
required amendment or supplement to the prospectus and/or any
required post-effective amendment to the Shelf Registration Statement
and use all reasonable efforts to cause any such post-effective
amendment to be declared effective under the Securities Act.
(b) Restrictions. The Master Trust will, in the aggregate, be
entitled to request the filing of five Registration Statements (the "Demand
Registration Rights Limit") with respect to which the Company will pay the
related Registration Expenses; provided, that, the Company will not be
obligated to register any Registrable Securities pursuant to this Section 2
unless the Demand Registration Notice requests that at least 25% of the then
outstanding Registrable Securities then held by the Master Trust be
registered. The Company shall not be required to effect more than two
registrations pursuant to this Section 2 in any calendar year.
(c) Effectiveness. The Company shall be deemed to have effected a
Demand Registration if the applicable Registration Statement is declared
effective by the SEC and remains effective for not less than 30 days (or such
shorter period as will terminate when all Registrable Securities have been
sold or withdrawn).
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(d) Selection of Underwriters. If at any time or from time to time
the Investment Manager, acting on behalf of the Master Trust, desires to sell
Registrable Securities in an Underwritten Offering, the investment banker or
investment bankers and manager or managers that will administer the offering
will, after consultation with the Company, be selected by the Investment
Manager, acting on behalf of the Master Trust, provided that such investment
bankers and managers must be of nationally recognized standing and reasonably
satisfactory to the Company and provided, further, that the Company shall have
the right to select one co-managing underwriter reasonably acceptable to the
Investment Manager, acting on behalf of the Master Trust.
(e) Periodic blackouts. In no event shall the Company be required to
file a Registration Statement or have such a Registration Statement declared
effective in the period beginning on the 15th day of the last month before the
end of any fiscal quarter and ending 24 hours following the filing with the
SEC of the Company's Form 10-Q (or Form 10-K, as applicable) with respect to
such fiscal quarter. If any time period provided for in Section 2(a) would
otherwise expire during the blackout period, then such time period shall be
extended so that it will expire at the end of the tenth Business Day following
the end of the blackout period set forth in this Section 2(e).
(f) Delay in Filing; Suspension of Registration. In addition to the
periodic blackout periods set forth in Section 2(e) hereof, the Company may
suspend (i) its obligation to file a Registration Statement or (ii) the use of
the Prospectus, in each case for a period not to exceed 45 days in the
aggregate in any three-month period or 90 days in the aggregate in any
12-month period (the "Suspension Period") if the filing of a Registration
Statement or use of the Prospectus would be adverse to the Company as
determined by the Company in its sole reasonable judgment, including, without
limitation, because such filing or use would require (x) disclosure of
non-public information regarding the acquisition or divestiture of assets,
pending corporate developments or similar events, (y) the preparation of
additional financial statements not then available or (z) because of an
upcoming public filing with the SEC, upon giving prompt written notice (a
"Suspension Notice") to the Investment Manager, on behalf of the Master Trust,
which notice need not specify the nature of the event giving rise to such
suspension. In the event of such a suspension, the obligations of the Company
in respect of any Demand Registration Notice shall be suspended, and the
Investment Manager, acting on behalf of the Master Trust, agrees to suspend
use of the Prospectus in connection with a sale or offer to sell Registrable
Securities upon receipt of the Suspension Notice and further agrees to keep
confidential the fact that the Company has exercised its rights pursuant to
this Section 2(f) and any other information related to such exercise. The
Company shall immediately notify the Investment Manager, on behalf of the
Master Trust, upon the termination of any Suspension Period and amend or
supplement the Prospectus, if necessary, in accordance with Section 5(d)
hereof.
(g) Demand Withdrawal. If the Investment Manager, acting on behalf of
the Master Trust, submits a Demand Registration Notice to the Company pursuant
to Section 2(a) hereof and later determines not
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to sell or transfer any Registrable Securities in connection with such notice,
the Investment Manager, acting on behalf of the Master Trust, shall give
prompt notice to the Company that the Registration Statement requested is no
longer required and that the request is thereby withdrawn. Upon receipt of
such notice, the Company shall cease all efforts to effect the filing of the
Registration Statement and shall take all action necessary and reasonably
practicable to prevent the commencement of effectiveness of any Registration
Statement that it is preparing or has prepared in connection with such a
withdrawn request. Notwithstanding the withdrawal of the Master Trust's
request, the withdrawn Demand Registration Notice shall be deemed a
registration of such Registrable Securities for the purposes of the Demand
Registration Rights Limit.
(h) Registration Statement Form. Registrations under this Section 2
shall be on such appropriate registration form of the SEC (i) as shall be
selected by the Company and as shall be reasonably acceptable to the
Investment Manager, acting on behalf of the Master Trust, and (ii) as shall
permit the disposition of the Registrable Securities in accordance with the
intended method or methods of disposition as specified by the Investment
Manager, acting on behalf of the Master Trust, in its related Demand
Registration Notice.
3. Piggyback Registration Rights
(a) Rights to Piggyback. Subject to the last sentence of this
paragraph, whenever the Company proposes to register any shares of Common
Stock (or securities convertible into or exchangeable or exercisable for
shares of the Common Stock) under the Securities Act (a "Proposed
Registration") and the registration form to be used may be used for the
registration of the Registrable Securities (a "Piggyback Registration"), the
Company will give written notice of such Proposed Registration as soon as
practicable to the Investment Manager, on behalf of the Master Trust, and
will, subject to Section 3(b) below, include in such Piggyback Registration
such Registrable Securities as the Company has received written request for
inclusion therein from the Investment Manager, acting on behalf of the Master
Trust, within 10 Business Days after receipt of the Company's notice.
Registrable Securities with respect to which such a request for Piggyback
Registration has been received will be registered by the Company and offered
to the public pursuant to this Section 3 on the same terms and subject to the
same conditions applicable to the Proposed Registration of shares of the
Common Stock to be sold by the Company or by Persons selling under such
Proposed Registration. The Master Trust will not be entitled to include
Registrable Securities pursuant to this paragraph 3(a) in any Registration
Statement (i) except as otherwise permitted by Section 2 hereof and (ii)
pertaining to the registration of any securities of the Company in connection
with mergers, acquisitions, exchange offers, subscription offers, dividend
reinvestment plans or stock options, (iii) a registration on Form S-4 or S-8
or any successor to such forms, (iv) a registration of shares of the Common
Stock solely relating to an offering and sale to employees or directors of the
Company pursuant to any employee stock plan or other employee benefit plan
arrangement or (v) pursuant to any shelf registration under Rule 415 of the
Securities Act. If at any time after giving written notice of its intention to
register any securities and prior
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to the effective date of the related registration statement, the Company shall
determine for any reason not to register or to delay registration of such
shares of Common Stock, the Company may, at its election, give written notice
of such determination to the Investment Manager, on behalf of the Master
Trust, and, (x) in the case of a determination not to register, shall be
relieved of its obligation to register any Registrable Securities in
connection with such registration, and (y) in the case of a determination to
delay registering, shall be permitted to delay registering any Registrable
Securities for the same period as the delay in registering such other
securities.
(b) Priority on Piggyback Registrations. If the managing underwriter
or underwriters advise the Company in writing, in the case of an Underwritten
Offering, or the Company reasonably believes, in the case of a Piggyback
Registration that is not being underwritten, that in its or their opinion, the
number of securities proposed to be registered exceeds the number that can be
sold in such offering without being likely to have a significant adverse
effect on the price, timing or distribution of the shares of Common Stock
offered thereby or the market for the Common Stock, the Company will include
in such Piggyback Registration the number of Common Shares that, in the
opinion of such underwriter or underwriters, can be sold as follows: (i)
first, 100% of the shares of Common Stock that the Company and any other
Person (other than the Master Trust) exercising a contractual right to demand
registration proposes to sell, (ii) second, and only if all of the Common
Stock referred to in clause (i) have been included, the Registrable Securities
requested to be included in such registration by the Investment Manager,
acting on behalf of the Master Trust, and (iii) third, and only if all of the
Common Stock referred to in clauses (i) and (ii) have been included, other
shares of Common Shares requested to be included in such registration.
(c) Selection of Underwriters. If any Piggyback Registration is an
Underwritten Offering, the Investment Manager, acting on behalf of the Master
Trust, shall be consulted regarding (but shall not have control over) the
selection of a managing underwriter or underwriters to administer the
offering.
(d) Withdrawal from a Piggyback Registration. The Investment Manager,
acting on behalf of the Master Trust, shall be permitted to withdraw all or a
part of the Registrable Securities requested to be registered in a Piggyback
Registration at any time; provided, however, that the Company shall be
entitled to reimbursement from the Master Trust for any SEC registration fees
incurred by the Company in connection with the registration of such
Registrable Securities to the extent permitted by law.
4. Black-Out Periods
(a) Restrictions on Sale by the Master Trust. In the event of a
registration under the Securities Act (except in the case of a registration on
Form S-8 or any successor form thereto) or an offering under a Shelf
Registration Statement of the Company's equity securities or securities
convertible into, exchangeable or exercisable for the Company's equity
securities, the Investment
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Manager, acting on behalf of the Master Trust, agrees, if requested by the
Company or any managing underwriter in an Underwritten Offering and upon at
least two days' notice, not to effect any public sale or distribution of
Common Shares, including a sale pursuant to Rule 144 under the Securities Act
(except as part of such registration), during such period as is specified by
the Company or the managing underwriters in writing to the Investment Manager,
on behalf of the Master Trust; provided, however, that such period may not
exceed 97 days and may begin no earlier than seven days before the date
reasonably expected by the Company or such managing underwriters to be the
date of the related Prospectus or Prospectus supplement, as the case may be.
(b) Restrictions on Sale by the Company. In the event of a
registration of Registrable Securities pursuant to Section 2 hereof the
Company agrees, if requested in writing by the Investment Manager, acting on
behalf of the Master Trust, or any managing underwriter and upon at least two
days' notice, not to effect any public sale or distribution, including any
sale pursuant to Rule 144 under the Securities Act, of any shares of Common
Stock of Company or any securities convertible into, exchangeable or
exercisable for shares of the Company's Common Stock during the period
specified by the Investment Manager, acting on behalf of the Master Trust, or
such managing underwriter in such notice; provided, however, that such period
may not exceed 97 days and may begin no earlier than seven days before the
date reasonably expected by the Investment Manager, acting on behalf of the
Master Trust, or such managing underwriter to be the date of the related
Prospectus or Prospectus supplement, as the case may be. Notwithstanding the
foregoing, the Company may effect a public sale or distribution of securities
of the type described above and during the periods described above if the same
is made (i) pursuant to a registration statement on Form S-4 or S-8 or any
successor form to such forms or (ii) as part of any registration of securities
for offering and sale to employees or directors of the Company pursuant to any
employee stock plan or other employee benefit plan.
5. Registration Procedures
In connection with the Company's obligation to file Registration
Statements pursuant to Sections 2 and 3 hereof, the Company shall use all
reasonable efforts to effect such registration to permit the sale of the
related Registrable Securities in accordance with the intended method or
methods of disposition thereof, and in connection therewith the Company shall:
(a) before filing a Registration Statement or Prospectus or
any amendments or supplements thereto (excluding amendments caused by
the filing of a report under the Exchange Act), furnish to the
Investment Manager, on behalf of the Master Trust, and the
underwriters, if any, copies of all such documents proposed to be
filed, and to use all reasonable efforts to reflect in each such
document, when so filed with the SEC, such comments as the Investment
Manager, acting on behalf of the Master Trust, may reasonably and
promptly propose, unless, in the Opinion of Counsel, statements
therein are as required by applicable law;
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(b) Subject to Section 2(c) and (d) hereof, the Company
shall ensure that (i) any Registration Statement, any amendment
thereto, any Prospectus forming a part thereof and any amendment or
supplement thereto comply in all material respects with the
Securities Act; (ii) any such 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 a part of any
such Registration Statement, and any amendment or supplement to such
Prospectus, does not include an untrue statement of a material fact
or omit to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they
were made, not misleading; provided, that the Company makes no
representation with respect to information included therein in
reliance upon and in conformity with information furnished to the
Company in writing by such underwriter or the Investment Manager,
acting on behalf of the Master Trust.
(c) notify in writing the Investment Manager, on behalf of
the Master Trust, and the managing underwriters, if any, as promptly
as reasonably practicable,
(1) when the Registration Statement or any
post-effective amendment thereto has become effective and
when a supplement to the Prospectus, if any, has been filed,
(2) of any request by the SEC following
effectiveness of a Registration Statement for amendments or
supplements to the Registration Statement or the Prospectus
or for additional information (other than a request relating
to a review of the Company's Exchange Act filings),
(3) of the issuance by the SEC of any stop order
suspending the effectiveness of the Registration Statement
or the initiation of any proceedings for that purpose,
(4) of the receipt by the Company of any
notification with respect to the suspension of the
qualification (or the exemption from qualification) of the
Registrable Securities included in any Registration
Statement for sale in any jurisdiction or the initiation or
threat of any proceeding for such purpose,
(5) of the happening of (but not the nature or
details concerning) any event or the existence of any state
of facts that requires the making of any changes in a
Registration Statement or the Prospectus included therein so
that, as of such date, such Registration Statement and
Prospectus, as the case may be, are not misleading and 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
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statements therein (in the case of the Prospectus, in light
of the circumstances under which they were made) not
misleading,
(6) of the determination by the Company that a
post-effective amendment to a Registration Statement
covering Registrable Securities would be appropriate,
(7) of the commencement or termination of any
Suspension Period pursuant to Section 2(f) hereof, and
(8) of the Company's suspension of the use of a
Prospectus relating to Registrable Securities as a result of
any of the events or circumstances described in paragraphs
(2) through (7) above, and of the termination of any such
suspension.
The Investment Manager shall keep confidential the fact that the
Company has suspended the use of a Prospectus pursuant to this Section 5(c)and
any other information related to such suspension, including the occurrence of
any of the events or circumstances in paragraphs (2) through (7) above.
(d) upon the occurrence of any event described in Section
5(c)(5) hereof, the Company shall promptly prepare and file with the
SEC a post-effective amendment to any Registration Statement covering
the Registrable Securities (and use all reasonable efforts to cause
it to become effective as promptly as practicable) or an amendment or
supplement to the related Prospectus or any document incorporated
therein by reference or file a document which is incorporated or
deemed to be incorporated by reference in such Registration Statement
or Prospectus, as the case may be, so that, as thereafter delivered
to purchasers of the Registrable Securities included therein, the
Registration Statement and the Prospectus, in each case as then
amended or supplemented, will not include an untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein
(in the case of the Prospectus, in light of the circumstances under
which they were made) not misleading and, in the case of a
post-effective amendment, use all reasonable efforts to cause it to
become effective as promptly as practicable; provided, however, that
the Company's obligations under this Section 5(d) shall be suspended
if the Company has suspended the use of the Prospectus in accordance
with Section 2(f) hereof and given notice of such suspension to the
Investment Manager, on behalf of the Master Trust, it being
understood that the Company's obligations under this Section 5(d)
shall be automatically reinstated at the end of such Suspension
Period;
(e) make every reasonable effort to obtain the withdrawal of
any order suspending the effectiveness of a Registration Statement
covering Registrable Securities or the lifting of any suspension of
the qualification (or exemption from qualification) of any of the
Registrable Securities for
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offer or sale in any jurisdiction at the earliest possible moment;
(f) if reasonably requested by the Investment Manager,
acting on behalf of the Master Trust, or the managing underwriter or
underwriters, if any, use all reasonable efforts to promptly
incorporate in a Prospectus supplement or post-effective amendment to
a Registration Statement covering Registrable Securities such
information provided in writing to the Company as the managing
underwriters, if any, and the Investment Manager, acting on behalf of
the Master Trust, agree should be included therein relating to the
sale of the Registrable Securities, including, without limitation,
information with respect to the number of Registrable Securities
being sold to such underwriters, the purchase price being paid
therefor by such underwriters and with respect to any other terms of
the Underwritten Offering of the Registrable Securities to be sold in
such offering; and make all required filings of such Prospectus
supplement or post-effective amendment reasonably promptly after
being notified of the matters to be incorporated in such Prospectus
supplement or post-effective amendment; provided, however, that the
Company shall not be required to take any action under this Section
5(f) that is not, in the Opinion of Counsel, in compliance with
applicable law;
(g) deliver to the Investment Manager, on behalf of the
Master Trust, and the underwriters, if any, without charge, as many
copies of the Prospectus (including each preliminary prospectus, if
any) and any amendments or supplements thereto as such Persons may
reasonably request; subject to Sections 2(f), 4(a) and 5(c), the
Company consents to the use of the Prospectus or any amendment or
supplement thereto by the Investment Manager, acting on behalf of the
Master Trust, and each of the underwriters, if any, in connection
with the offering and sale of the Registrable Securities covered by
such Prospectus or amendment or supplement thereto;
(h) use all reasonable efforts to register or qualify for
offer and sale (or obtain an exemption from registration or
qualification) or assist the Master Trust in obtaining such a
registration, qualification or exemption of Registrable Securities
registered pursuant to a Registration Statement, and maintain such
registration, qualification or exemption for so long as required,
under the securities or blue sky laws of such jurisdictions of or
within the United States of America as the Investment Manager, acting
on behalf of the Master Trust, or any managing underwriter reasonably
requests in writing and do any and all other acts or things necessary
or advisable to enable the disposition of such Registrable Securities
in such jurisdictions pursuant to the applicable Registration
Statement; provided that the Company will not be required to qualify
generally to do business or as a dealer in securities in any
jurisdiction where it is not then so qualified, take any action which
would subject it to general service of process in any such
jurisdiction where it is not then so subject, or take any action
which would subject it to taxation in any
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jurisdiction where it is not then so subject (other than taxes
relating to the Registrable Securities);
(i) consistent with the terms of the Registrable Securities,
cooperate with the Investment Manager, acting on behalf of the Master
Trust, and the managing underwriters, if any, to facilitate the
timely preparation and delivery of certificates representing
Registrable Securities to be sold pursuant to a Registration
Statement free of any restrictive legends and registered in such
names as the Investment Manager, acting on behalf of the Master
Trust, or any managing underwriters may request at least two Business
Days prior to the settlement of sales of Registrable Securities
pursuant to such Registration Statement;
(j) subject to the exceptions contained in the proviso of
Section 5(h), use its reasonable efforts to cause the Registrable
Securities covered by a Registration Statement to be registered with
or approved by such other governmental agencies, authorities or
self-regulatory organizations of or within the United States of
America as may be necessary to enable the Master Trust or the
underwriters, if any, to consummate the disposition of such
Registrable Securities as contemplated by the applicable Registration
Statement; without limitation to the foregoing, the Company shall
cooperate with the Investment Manager, acting on behalf of the Master
Trust, and the underwriters, if any, in connection with any filings
required to be made with the NASD in connection with the offering
under a Registration Statement (including, without limitation, such
as may be required by the NASD Rule 2710 or 2720 by the Investment
Manager, acting on behalf of the Master Trust, or such underwriters
in that regard);
(k) use all reasonable efforts to cause the Registrable
Securities registered pursuant to a Registration Statement to be
listed on the New York Stock Exchange (or, if the Company's Common
Stock is not then listed on the New York Stock Exchange, the
principal securities exchange or quotation system on which such
Common Stock is then listed) no later than the date such Registration
Statement is declared effective and, in connection therewith, to make
such filings as may be required under the Exchange Act and to have
such filings declared effective as and when required thereunder;
(l) enter into such agreements (including an underwriting
agreement) and take all such other appropriate actions in connection
therewith consistent with the Company's past practice and as may be
reasonably requested by the Investment Manager, acting on behalf of
the Master Trust, and the underwriters, if any, in order to expedite
or facilitate the disposition of those Registrable Securities covered
by a Registration Statement and in connection therewith:
(1) make such representations and warranties to the
Investment Manager, Master Trust and the underwriters, if
any, in form, substance and scope as are customarily made by
issuers to underwriters in
12
Underwritten Offerings and consistent with the Company's
past practice;
(2) obtain opinions of counsel to the Company and
updates thereof (which counsel and opinions in form, scope
and substance shall be reasonably satisfactory to the
managing underwriters, if any, and the Investment Manager,
acting on behalf of the Master Trust) addressed to each of
the Investment Manager, Master Trust and the underwriters,
if any, covering: (i) in the case of an Underwritten
Offering, the matters customarily covered in opinions
requested in Underwritten Offerings consistent with the
Company's past practice and (ii) in the case of offerings
not involving an underwriter, the matters addressed by Rule
10b-5 of the Exchange Act and stating that the Registration
Statement complies, as to form, with the requirements of the
Securities Act;
(3) obtain "cold comfort" letters and updates
thereof from the Company's current and former independent
certified public accountants (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 Registration Statement)
addressed to the Investment Manager, Master Trust and the
underwriters, if any, and in customary form and covering
matters of the type customarily covered in "cold comfort"
letters in connection with Underwritten Offerings and
consistent with the Company's past practice (provided the
Investment Manager, acting on behalf of the Master Trust,
and the underwriters, if any, furnish the accountants, prior
to the date such "cold comfort" letter is required to be
delivered, with such representations as the accountants
customarily require in similar situations);
(4) the Company shall deliver such documents and
certificates as may be reasonably requested by the
Investment Manager, acting on behalf of the Master Trust,
and the managing underwriters, if any, to evidence
compliance with clause (1) above and with any customary
conditions contained in the underwriting agreement or other
agreement entered into by the Company and consistent with
the Company's past practice; and
(5) if an underwriting agreement is entered into, the
same shall set forth in full indemnification and
contribution provisions and procedures that are no less
favorable than those of Section 7 hereof;
The actions set forth in (1) through (4) shall be done at each closing under
such underwriting or similar agreement and to the extent required thereunder;
(m) make available for inspection during normal business
hours by a representative of any underwriter participating in
13
any disposition pursuant to a Registration Statement covering
Registrable Securities, and any attorney or accountant retained by
such underwriter, all pertinent financial and other records,
pertinent corporate documents and properties of the Company and its
subsidiaries as is customary for due diligence examinations in
connection with public offerings, and cause the Company's officers,
directors and employees to supply all relevant information reasonably
requested by any such representative, underwriter, attorney or
accountant in connection with the Registration Statement; provided,
however, that any information that is provided by the Company shall
be kept confidential by the Investment Manager or any such
underwriter, attorney or accountant, unless disclosure thereof is
made in connection with a court, administrative or regulatory
proceeding or required by law, or such information has become
available to the public generally through the Company or through a
third party without an accompanying obligation of confidentiality;
and
(n) otherwise use its reasonable best efforts to comply with
all applicable law and rules and regulations of the SEC and make
generally available to its security holders as soon as practicable
but in any event not later than 18 months after (i) the effective
date of the applicable Registration Statement, (ii) the effective
date (as defined in Rule 158(c) under the Securities Act) of each
post-effective amendment to any Registration Statement covering
Registrable Securities and (iii) the date of each filing by the
Company of an Annual Report on Form 10-K with the SEC that is
incorporated by reference or deemed to be incorporated by reference
in the Registration Statement, an earnings statement satisfying the
provisions of Section 11(a) of the Securities Act and Rule 158
promulgated by the SEC thereunder.
(o) In the event that any Broker-Dealer shall underwrite any
Registrable Securities or participate as a member of an underwriting
syndicate or selling group or "assist in the distribution" (within
the meaning of the NASD Rules) thereof, whether as a holder of such
Registrable Securities or as an underwriter, a placement or sales
agent or a broker or dealer in respect thereof, or otherwise, the
Company shall assist such Broker-Dealer in complying with the NASD
Rules, including, without limitation, by, if the NASD Rules shall so
require:
(i) engaging a "qualified independent underwriter" (as
defined in the NASD Rules) to participate in the preparation of the
Registration Statement, to exercise customary standards of due
diligence with respect thereto and, if any portion of the offering
contemplated by the Registration Statement is an Underwritten
Offering or is made through a placement or sales agent, to recommend
the price of such Registrable Securities;
(ii) indemnifying any such qualified independent
underwriter to the extent of the indemnification and contribution
provisions and procedures that are no less favorable than those of
Section 7 hereof; and
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(iii) providing such information to such Broker-Dealer as
may be required in order for such Broker-Dealer to comply with the
requirements of the NASD Rules.
The Company may require the Investment Manager, acting on behalf of
the Master Trust, to furnish in writing to the Company such information
regarding itself, the Master Trust and the distribution of the Registrable
Securities as the Company may from time to time reasonably request and the
obligations of the Company to the Investment Manager and Master Trust
hereunder shall be expressly conditioned on the compliance of the Investment
Manager and Master Trust with such request.
The Investment Manager, acting on behalf of the Master Trust, agrees
that, upon receipt of any notice pursuant to Section 5(c)(8) from the Company,
the Investment Manager, acting on behalf of the Master Trust, will forthwith
discontinue disposition of Registrable Securities until the Investment
Manager's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 5(d) hereof, or until it is advised in writing by the
Company that the use of the Prospectus may be resumed, and, if so directed by
the Company, the Investment Manager, acting on behalf of the Master Trust,
will deliver to the Company (at the Company's expense) all copies, other than
permanent file copies then in the Investment Manager's possession, of the
Prospectus covering such Registrable Securities current at the time of receipt
of such notice, provided, that, the foregoing shall not prevent the sale,
transfer or other disposition of Registrable Securities by the Master Trust,
in a transaction which is exempt from, or not subject to, the registration
requirements of the Securities Act, so long as the Master Trust does not and
is not required to deliver the applicable Prospectus or Registration Statement
in connection with such sale, transfer or other disposition, as the case may
be.
6. Registration Expenses
The Company shall bear all expenses incurred in connection with the
performance of its obligations under Sections 2 and 3 hereof and shall
reimburse the Investment Manager and the Master Trust for the reasonable fees
and disbursements of one firm or counsel designated by the Investment Manager
to act as counsel for the Investment Manager and the Master Trust in
connection therewith. Notwithstanding the provisions of this Section 6, the
Master Trust, to the extent permitted by applicable law, shall bear the
expense of any broker's commission, agency fee or underwriter's discount or
commission.
7. Indemnification
(a) Indemnification by the Company. The Company agrees to
indemnify and hold harmless each of the Master Trust and the Investment
Manager, the directors, officers, employees and agents thereof and each Person
who controls the Master Trust or the Investment Manager within the meaning of
either the Securities Act or the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of them
may
15
become subject under the Securities Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise (collectively,
"Losses"), insofar as such Losses (or actions in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement under which such
Registrable Securities are to be registered under the Securities Act as
originally filed or in any amendment thereof, or in any preliminary or final
Prospectus contained therein, or in any amendment thereof or supplement
thereto (each such document, a "Registration Document"), or arise out of or
are based upon the omission or alleged omission to state in any Registration
Document a material fact required to be stated therein or necessary to make
the statements therein (in the case of a Prospectus, in light of the
circumstances under which they were made)not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided,
however, that the (i) Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is
based upon any such untrue statement or alleged untrue statement or omission
or alleged omission made therein in reliance upon and in conformity with
written information relating to the assets of the Master Trust controlled by
the Investment Manager or to the Investment Manager furnished to the Company
by or on behalf of Investment Manager specifically for inclusion therein and
(ii) with respect to any untrue statement or omission of material fact made in
any Preliminary Prospectus, the indemnity agreement contained in this Section
7(a) shall not inure to the benefit of either the Master Trust or the
Investment Manager, to the extent that any such loss, claim, damage or
liability of such Underwriter occurs under the circumstance where it shall be
determined by a court of competent jurisdiction by final and non-appealable
judgment that (w) the Company had previously furnished copies of the
Prospectus relating to the Registrable Securities to the Investment Manager,
on behalf of the Master Trust, (x) delivery of the Prospectus relating to the
Registrable Securities was required by the Act to be made to the Person
asserting any such loss, claim, damage or liability, (y) the untrue statement
or alleged untrue statement or omission or alleged omission of a material fact
contained in the preliminary Prospectus was corrected in the final Prospectus
relating to the Registrable Securities and (z) 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 relating to the
Registrable Securities; provided, however, that the Company shall not be
liable to either of the Master Trust or Investment Manager if the use of a
Registration Statement or the related Prospectus occurred during a period when
use of such Prospectus has been suspended pursuant to Section 2(f) or Section
5(c)(8) hereof, provided, in each case, that the Investment Manager, on behalf
of the Master Trust, received prior notice of such suspension.
(b) Indemnification by the Master Trust. The Investment Manager
agrees, to the extent permitted by applicable law, to indemnify and hold
harmless the Company, each of its directors, each of its officers who signs
the Registration Statement, and each Person who controls the Company within
the meaning of either the
16
Securities Act or the Exchange Act, to the same extent as the foregoing
indemnity to each of the Master Trust and Investment Manager, but only with
reference to written information relating to the assets of the Master Trust
controlled by the Investment Manager or to the Investment Manager, as the case
may be, furnished to the Company by or on behalf of the Master Trust or
Investment Manager specifically for inclusion in the documents referred to in
the foregoing indemnities.
(c) Notices of Claims, Etc. Promptly after receipt by an
indemnified party under this Section 7 of notice of the commencement of any
action, such indemnified party will, if a claim in respect thereof is to be
made against the indemnifying party under this Section 7, notify the
indemnifying party in writing of the commencement thereof; but the failure so
to notify the indemnifying party (i) will not relieve it from liability under
paragraph (a) or (b) above unless and to the extent it did not otherwise learn
of such action and such failure results in the forfeiture by the indemnifying
party of substantial rights and defenses and (ii) 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. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent
the indemnified party in any action for which indemnification is sought (in
which case the indemnifying party shall not thereafter be responsible for the
fees and expenses of any separate counsel retained by the indemnified party or
parties except as set forth below); provided, however, that such counsel shall
be satisfactory to the indemnified party. Notwithstanding the indemnifying
party's election to appoint counsel to represent the indemnified party in an
action, the indemnified party shall have the right to employ separate counsel
(including local counsel), and the indemnifying party shall bear the
reasonable fees, costs and expenses of such separate counsel if (i) the use of
counsel chosen by the indemnifying party to represent the indemnified party
would present such counsel with a conflict of interest, (ii) the actual or
potential defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to
those available to the indemnifying party, (iii) the indemnifying party shall
not have employed counsel reasonably satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of the
institution of such action or (iv) the indemnifying party shall authorize the
indemnified party to employ separate counsel at the expense of the
indemnifying party. An indemnifying party will not, without the prior written
consent of the indemnified parties, which 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 includes an
unconditional release of each indemnified party from all liability arising out
of such claim,
17
action, suit or proceeding. The indemnifying party or parties shall not be
liable under this Agreement with respect to any settlement made by any
indemnified party or parties without prior written consent, which consent
shall not be unreasonably withheld, by the indemnifying party or parties to
such settlement.
(d) Contribution. In the event that the indemnity provided in
paragraph (a) or (b) of this Section 7 is unavailable to or insufficient to
hold harmless an indemnified party for any reason, each indemnifying party
agrees to contribute to the Losses (including legal or other expenses
reasonably incurred in connection with investigating or defending same) to
which such indemnified party may be subject in such proportion as is
appropriate to reflect the relative benefits received by the indemnifying
party on the one hand and by the indemnified party on the other hand. If the
allocation provided by the immediately preceding sentence is unavailable for
any reason, the indemnifying parties shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the indemnifying party on the one hand and of the indemnified party
on the other in connection with the statements or omissions which resulted in
such Losses as well as any other relevant equitable considerations. Relative
fault shall be determined by reference to, among other things, whether any
untrue or any alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information provided by
the indemnifying party on the one hand or the indemnified party on the other,
the intent of the parties and their relative knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission. The
parties hereto agree that it would not be just and equitable if contribution
were determined by pro rata allocation or any other method of allocation which
does not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), no Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 7,
each Person who controls either the Master Trust or the Investment Manager
within the meaning of either the Securities Act or the Exchange Act and each
director, officer, employee and agent of such Person shall have the same
rights to contribution as the Master Trust or Investment Manager, as the case
may be, and each Person who controls the Company within the meaning of either
the Securities Act or the Exchange Act, each officer of the Company who shall
have signed the Registration Statement covering the Registrable Securities and
each director of the Company shall have the same rights to contribution as the
Company, subject in each case to the applicable terms and conditions of this
paragraph (d).
8. Miscellaneous
(a) Remedies. The Master Trust, in addition to being entitled to
exercise all rights provided herein and granted by law, including recovery of
damages, will be entitled to specific performance of its rights under this
Agreement in accordance with the terms and conditions of this Agreement. The
Company agrees that
18
monetary damages would not be adequate compensation for any loss incurred by
reason of a breach by it of the provisions of this Agreement and that the
Master Trust may be irreparably harmed by such failure and hereby agrees to
waive the defense in any action for specific performance that a remedy at law
would be adequate.
(b) No Inconsistent Agreements. The Company has not, as of the date
hereof, and will not on or after the date of this Agreement enter into any
agreement with respect to its securities which is inconsistent with the rights
granted to the Master Trust in this Agreement or otherwise conflicts with the
provisions hereof.
(c) 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 each of the parties hereto has given
its written consent.
(d) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class
mail, telecopier, or courier guaranteeing overnight delivery:
(i) if to the Investment Manager, initially at its address
at 000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxx, XX 00000-0000,
Attention: Xx. Xxxxxxx Xxxx, Executive Vice President; and
(ii) if to the Company, initially at its address at 0000
Xxxxxxxx Xxxxxxx NE, Lehigh Valley Central Campus, Xxxxxxxxx, XX
00000, Attention: Corporate Secretary,
and thereafter at such other address, notice of which is given in accordance
with the provisions of this Section 11(e).
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
receipt acknowledged, if telecopied; and on the next business day, if timely
delivered to a courier guaranteeing overnight delivery.
(e) Successors and Assigns. This Agreement shall be binding upon,
shall inure to the benefit of and shall be enforceable by the respective
successors of the parties hereto and the directors, trustees (including,
without limitation, any successor trustee for the Master Trust), officers,
employees, agents and controlling Persons of the parties. Except for an
assignment to a successor trustee, none of the rights or obligations under
this Agreement shall be assigned by the Investment Manager or Master Trust
without the consent of the Company or by the Company without the consent of
the Investment Manager, acting on behalf of the Master Trust.
(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
19
an original and all of which taken together shall constitute one and the same
agreement.
(g) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law; Consent to Jurisdiction.
(i) This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to
agreements made in and to be performed in said state.
(ii) To the fullest extent permitted by applicable law, each
party hereto (i) agrees that any claim, action or proceeding by such
party seeking any relief whatsoever arising out of, or in connection
with, this Agreement or the transactions contemplated hereby shall be
brought only in the United States District Court for the Southern
District of New York and in any New York State court located in the
Borough of Manhattan and not in any other State or Federal court in
the United States of America or any court in any other country, (ii)
agrees to submit to the exclusive jurisdiction of such courts located
in the State of New York for purposes of all legal proceedings
arising out of, or in connection with, this Agreement or the
transactions contemplated hereby and (iii) irrevocably waives any
objection which it may now or hereafter have to the laying of the
venue of any such proceeding brought in such a court and any claim
that any such proceeding brought in such a court has been brought in
an inconvenient forum.
(i) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and
of the remaining provisions hereof shall not be in any way impaired or
affected thereby, it being intended that all of the rights and privileges of
the parties hereto shall be enforceable to the fullest extent permitted by
law.
(j) 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 Registrable Securities. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
(k) Termination. This Agreement and the obligations of the parties
hereunder except for any liabilities or obligations under Section 7 hereof,
shall terminate on the date upon which the Master Trust no longer holds any
Registrable Securities.
20
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
AGERE SYSTEMS INC.
By:/s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Vice President
U.S. TRUST COMPANY, N.A.,
as investment manager of certain assets held by the
Agere Systems Inc. Master Trust
By:/s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Managing Director
21
