EXHIBIT 4.8
EXECUTION COPY
SANMINA-SCI CORPORATION
10.375% SENIOR SECURED NOTES DUE JANUARY 15, 2010
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
December 23, 2002
Goldman, Sachs & Co.,
Banc of America Securities LLC
Salomon Smith Barney Inc.
Morgan Stanley & Co. Incorporated
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Scotia Capital (USA) Inc.
RBC Dominion Securities Corporation
c/o Goldman, Sachs & Co.,
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
Sanmina-SCI Corporation, a Delaware corporation (the "Company"), and
the Guarantors (as defined herein) propose to issue and sell to the Purchasers
(as defined herein) upon the terms set forth in the Purchase Agreement (as
defined herein) the Company's 10.375% Senior Secured Notes due January 15, 2010,
fully and unconditionally guaranteed by each of the Guarantors. As an inducement
to the Purchasers to enter into the Purchase Agreement and in satisfaction of a
condition to the obligations of the Purchasers thereunder, the Company and the
Guarantors agree with the Purchasers for the benefit of holders (as defined
herein) from time to time of the Transfer Restricted Securities (as defined
herein) as follows:
1. Certain Definitions. For purposes of this Exchange and
Registration Rights Agreement, the following terms shall have the following
respective meanings:
"Base Interest" shall mean the interest that would otherwise accrue on
the Securities under the terms thereof and the Indenture, without giving effect
to the provisions of this Agreement.
The term "broker-dealer" shall mean any broker or dealer registered
with the Commission under the Exchange Act.
"Closing Date" shall mean the date on which the Securities are
initially issued.
"Commission" shall mean the United States Securities and Exchange
Commission, or any other federal agency at the time administering the Exchange
Act or the Securities Act, whichever is the relevant statute for the particular
purpose.
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"Effective Time," in the case of (i) an Exchange Registration, shall
mean the time and date as of which the Commission declares the Exchange
Registration Statement effective or as of which the Exchange Registration
Statement otherwise becomes effective and (ii) a Shelf Registration, shall mean
the time and date as of which the Commission declares the Shelf Registration
Statement effective or as of which the Shelf Registration Statement otherwise
becomes effective.
"Electing Holder" shall mean any holder of Transfer Restricted
Securities that has returned a completed and signed Notice and Questionnaire to
the Company in accordance with Section 3(d)(ii) or 3(d)(iii) hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, or any
successor thereto, as the same shall be amended from time to time.
"Exchange Offer" shall have the meaning assigned thereto in Section
2(a) hereof.
"Exchange Registration" shall have the meaning assigned thereto in
Section 3(c) hereof.
"Exchange Registration Statement" shall have the meaning assigned
thereto in Section 2(a) hereof.
"Exchange Securities" shall have the meaning assigned thereto in
Section 2(a) hereof.
"Guarantors" shall mean the entities listed on Schedule II to the
Purchase Agreement.
The term "holder" shall mean with respect to the Transfer Restricted
Securities, each of the Purchasers and other persons who acquire Transfer
Restricted Securities from time to time (including any successors or assigns),
in each case for so long as such person owns any Transfer Restricted Securities.
"Indenture" shall mean the Indenture, dated as of December[], 2002,
between the Company, the Guarantors and State Street Bank and Trust Company of
California, N.A., as Trustee.
"Notice and Questionnaire" shall mean a Notice of Registration
Statement and Selling Securityholder Questionnaire substantially in the form of
Exhibit A hereto and as may be supplemented in any manner advisable to meet the
requirements of the Securities Act, including items 507 and 508 of Regulation
S-K.
"Material Adverse Effect" shall mean any change in the capital stock or
long-term debt of the Company or any of its subsidiaries or any material adverse
change, or any development that is reasonably likely to result in a material
adverse change, in or affecting the business, business prospects, management,
financial position, stockholders' equity or results of operations of the Company
and its subsidiaries taken as a whole.
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The term "person" shall mean a corporation, association, partnership,
organization, business, individual, government or political subdivision thereof
or governmental agency.
"Purchase Agreement" shall mean the Purchase Agreement, dated as of
December 18, 2002, between the Purchasers, the Company and the Guarantors
relating to the Securities.
"Purchasers" shall mean Goldman, Sachs & Co., Banc of America
Securities LLC, Salomon Smith Barney Inc., Morgan Stanley & Co. Incorporated,
Merrill Lynch, Pierce, Fenner & Smith Incorporated, Scotia Capital (USA) Inc.
and RBC Dominion Securities Corporation.
"Registration Default" shall have the meaning assigned thereto in
Section 2(c) hereof.
"Registration Expenses" shall have the meaning assigned thereto in
Section 4 hereof.
"Resale Period" shall have the meaning assigned thereto in Section 2(a)
hereof.
"Restricted Holder" shall mean (i) a holder that is an affiliate of the
Company within the meaning of Rule 405, (ii) a holder who acquires Exchange
Securities outside the ordinary course of such holder's business, (iii) a holder
who has arrangements or understandings with any person to participate in the
Exchange Offer for the purpose of distributing Exchange Securities and (iv) a
holder that is a broker-dealer, but only with respect to Exchange Securities
received by such broker-dealer pursuant to the Exchange Offer in exchange for
Transfer Restricted Securities acquired by the broker-dealer directly from the
Company.
"Rule 144," "Rule 405" and "Rule 415" shall mean, in each case, such
rule promulgated under the Securities Act (or any successor provision), as the
same shall be amended from time to time.
"Securities" shall mean, collectively, the 10.375% Senior Secured Notes
due January 15, 2010 of the Company and fully and unconditionally guaranteed by
the Guarantors to be issued and sold to the Purchasers pursuant to the Purchase
Agreement, and securities issued in exchange therefor or in lieu thereof
pursuant to the Indenture.
"Securities Act" shall mean the Securities Act of 1933, or any
successor thereto, as the same shall be amended from time to time.
"Shelf Registration" shall have the meaning assigned thereto in Section
2(b) hereof.
"Shelf Registration Statement" shall have the meaning assigned thereto
in Section 2(b) hereof.
"Special Interest" shall have the meaning assigned thereto in Section
2(c) hereof.
"Transfer Restricted Security" means each of the Securities and each of
the Exchange Securities described in Section 2(b)(iv), in each case upon the
original issuance thereof and at all times subsequent thereto until the earliest
to occur of (A) the date on which any such Security
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has been exchanged by a person other than a broker-dealer for an Exchange
Security (other than with respect to an Exchange Security as to which Section
2(b)(iv) applies) pursuant to the Exchange Offer, (B) with respect to Exchange
Securities received by broker-dealers in the Exchange Offer, the earlier of (x)
the date on which such Exchange Security has been sold by such broker-dealer by
means of the prospectus contained in the Exchange Registration Statement and (y)
the latest date by which the Company and the Guarantors are required to keep the
Exchange Offer Registration Statement effective pursuant to Section 2(a) below,
(C) a Shelf Registration Statement covering such Security or Exchange Security,
as the case may be, has been declared effective by the Commission and such
Security or Exchange Security, as the case may be, has been disposed of in
accordance with such effective Shelf Registration Statement, (D) such Security
or Exchange Security, as the case may be, is sold pursuant to Rule 144 under
circumstances in which the legend borne by such Security or Exchange Security
relating to restrictions on transferability thereof, under the Securities Act or
otherwise, is removed by the Company or pursuant to the Indenture, (E) the date
on which such Security or Exchange Security, as the case may be, is eligible for
distribution to the public without volume or manner of sale restrictions
pursuant to Rule 144(k) or (F) the date on which such Security or Exchange
Security, as the case may be, ceases to be outstanding for the purposes of the
Indenture or any other indenture under which such Security or Exchange Security
was issued.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, or
any successor thereto, and the rules, regulations and forms promulgated
thereunder, all as the same shall be amended from time to time.
Unless the context otherwise requires, any reference herein to a
"Section" or "clause" refers to a Section or clause, as the case may be, of this
Exchange and Registration Rights Agreement, and the words "herein," "hereof" and
"hereunder" and other words of similar import refer to this Exchange and
Registration Rights Agreement as a whole and not to any particular Section or
other subdivision.
2. Registration Under the Securities Act.
(a) Except as set forth in Section 2(b) below, the
Company and the Guarantors agree that they shall use their reasonable
efforts to file under the Securities Act, as soon as practicable, but
no later than 90 days after the Closing Date, a registration statement
relating to an offer to exchange (such registration statement, the
"Exchange Registration Statement", and such offer, the "Exchange
Offer") any and all of the Transfer Restricted Securities for a like
aggregate principal amount of debt securities issued by the Company
and fully and unconditionally guaranteed by each of the Guarantors,
which debt securities are substantially identical to the Securities
(and are entitled to the benefits of a trust indenture which is
substantially identical to the Indenture or is the Indenture and which
has been qualified under the Trust Indenture Act), except that they
have been registered pursuant to an effective registration statement
under the Securities Act and do not contain provisions for the
additional interest contemplated in Section 2(c) below (such new debt
securities hereinafter called "Exchange Securities"). The Company and
the Guarantors agree that they shall use their reasonable efforts to
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cause the Exchange Registration Statement to become effective under
the Securities Act as soon as practicable, but no later than 180 days
after the Closing Date. The Exchange Offer will be registered under
the Securities Act on the appropriate form and will comply with all
applicable tender offer rules and regulations under the Exchange Act.
The Company and the Guarantors further agree that the Company shall
use its reasonable efforts to commence and consummate the Exchange
Offer promptly, but no later than 215 days after the Closing Date,
hold the Exchange Offer open for at least 30 days (or longer if
required by applicable law) and exchange Exchange Securities for all
Transfer Restricted Securities that have been properly tendered and
not withdrawn on or prior to the expiration of the Exchange Offer. The
Exchange Offer will be deemed to have been "consummated" only if the
debt securities received by holders other than Restricted Holders in
the Exchange Offer for Registrable Securities are, upon receipt,
transferable by each such holder without the need for further
compliance with Section 5 of the Securities Act and the Exchange Act
(except for the requirement to deliver a prospectus included in the
Exchange Offer Registration Statement applicable to resales by
broker-dealers of Exchange Securities received by such broker-dealer
pursuant to the Exchange Offer in exchange for Transfer Restricted
Securities other than those acquired by the broker-dealer directly
from the Company) and without material restrictions under the blue sky
or securities laws of a substantial majority of the States of the
United States of America. The Exchange Offer shall be deemed to have
been consummated upon the earlier to occur of (i) the Company and the
Guarantors having exchanged the Exchange Securities for all
outstanding Transfer Restricted Securities pursuant to the Exchange
Offer and (ii) the Company and the Guarantors having exchanged,
pursuant to the Exchange Offer, Exchange Securities for all Transfer
Restricted Securities that have been properly tendered and not
withdrawn before the expiration of the Exchange Offer, which shall be
on a date that is at least 30 days following the commencement of the
Exchange Offer. If the Company is notified prior to the completion of
the Exchange Offer by a broker-dealer that is a holder of Transfer
Restricted Securities (other than Transfer Restricted Securities
received by the broker-dealer directly from the Company), the Company
and the Guarantors agree (x) to include in the Exchange Registration
Statement a prospectus for use in connection with any resales of
Exchange Securities by any holder thereof that is a broker-dealer,
other than resales of Exchange Securities received by a broker-dealer
pursuant to an Exchange Offer in exchange for Transfer Restricted
Securities acquired by the broker-dealer directly from the Company,
and (y) to keep such Exchange Registration Statement effective for a
period (the "Resale Period") beginning when Exchange Securities are
first issued in the Exchange Offer and ending upon the earlier of the
expiration of the 180th day after the Exchange Offer has been
consummated (if the Exchange Offer Registration Statement shall be
suspended from use during such 180-day period, such date shall be
extended by the number of days in the period from and including the
date of the giving of notice of such suspension to and including the
date when the Company and the Guarantors shall have made available to
participating broker-dealers copies of the supplemented or amended
prospectus necessary to resume dispositions by such participating
broker-dealers) or such time as such broker-dealers no longer own any
Transfer Restricted Securities. With respect to such Exchange
Registration Statement, each broker-dealer that holds Exchange
Securities received in an
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Exchange Offer in exchange for Transfer Restricted Securities not
acquired by it directly from the Company shall have the benefit of the
rights of indemnification and contribution set forth in Sections 6(a),
(c), (d) and (e) hereof.
(b) If (i) on or prior to the time the Exchange Offer is
consummated, existing interpretations of the staff of the Commission
are changed such that the debt securities received by holders other
than Restricted Holders in the Exchange Offer for Transfer Restricted
Securities are not or would not be, upon receipt, transferable by each
such holder without restriction under the Securities Act, (ii) the
Exchange Registration Statement is not declared effective within 180
days after the Closing Date or the Exchange Offer has not been
consummated within 215 days after the Closing Date, (iii) the
Purchasers so request with respect to Securities held by them that are
not eligible to be exchanged for Exchange Securities in the Exchange
Offer; or (iv) any holder of Securities (other than a Purchaser)
notifies the Company in writing that (a) it is not eligible to
participate in the Exchange Offer or (b) it may not resell the Exchange
Securities to be acquired by it in the Exchange Offer to the public
without delivering a prospectus and the prospectus contained in the
Exchange Offer Registration Statement is not appropriate for such
resales by such holder, the Company shall, in lieu of (or, in the case
of clauses (iii) and (iv), in addition to) conducting the Exchange
Offer contemplated by Section 2(a), use its reasonable efforts to file
under the Securities Act as promptly as practicable and, in any event,
no later than 45 days after the Company becomes aware that such
obligation to file arises, a "shelf" registration statement providing
for the registration of, and the sale on a continuous or delayed basis
by the holders of, all of the Transfer Restricted Securities, pursuant
to Rule 415 or any similar rule that may be adopted by the Commission
(such filing, the "Shelf Registration" and such registration statement,
the "Shelf Registration Statement"). The Company and the Guarantors
agree that they shall use their reasonable efforts to cause the Shelf
Registration Statement to become or be declared effective by the
Commission no later than 90 days after such Shelf Registration
Statement is filed and to keep such Shelf Registration Statement
continuously effective for a period ending on the earlier of two years
(or such shorter period as may be established by any amendment to the
two-year period set forth in Rule 144(k) under the Securities Act)
following the Closing Date or the date immediately following the date
that all Transfer Restricted Securities covered by the Shelf
Registration Statement have been sold pursuant thereto or otherwise
cease to be Transfer Restricted Securities, provided, however, that no
holder shall be entitled to be named as a selling securityholder in the
Shelf Registration Statement or to use the prospectus forming a part
thereof for resales of Transfer Restricted Securities unless such
holder is an Electing Holder. Holders of Transfer Restricted Securities
that do not complete a Notice and Questionnaire and deliver it to the
Company and the Guarantors at least two calendar days prior to the
Effective Time of the Shelf Registration Statement shall not be named
as selling securityholders in the prospectus included in the Shelf
Registration Statement and, therefore, shall not be permitted to sell
any Transfer Restricted Securities pursuant to the Shelf Registration
Statement. Notwithstanding the foregoing, upon request from a holder of
Transfer Restricted Securities that did not return a Notice and
Questionnaire on a timely basis because it was a subsequent transferee
of Transfer
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Restricted Securities after the Company distributed the Notice and
Questionnaire pursuant to Section 3(d)(ii), (1) the Company shall
distribute a Notice and Questionnaire to such holder at the address set
forth in the request and (2) upon receipt of a properly completed
Notice and Questionnaire from such holder, the Company shall use its
reasonable efforts to name such holder as a selling securityholder by
means of a pre-effective amendment or, if permitted by the Commission,
by means of a prospectus supplement to the Shelf Registration
Statement; provided, however, that the Company and the Guarantors shall
have no obligation to pay Special Interest to such holder for its
failure to name such holder as a selling securityholder by means of a
pre-effective amendment or prospectus supplement. No holder of Transfer
Restricted Securities shall be entitled to Special Interest pursuant to
Section 2(c) accrued after the date that is two calendar days prior to
the Effective Time unless and until such holder shall have returned a
completed and signed Notice and Questionnaire to the Company and the
Subsidiary Guarantors in accordance with the requirements of this
Exchange and Registration Rights Agreement. The Company and the
Guarantors further agree that they shall supplement or make amendments
to the Shelf Registration Statement, as and when required by the rules,
regulations or instructions applicable to the registration form used by
the Company for such Shelf Registration Statement or by the Securities
Act or rules and regulations thereunder for shelf registration, and the
Company and the Guarantors agree that they shall furnish to each
Electing Holder copies of any such supplement or amendment prior to its
being used or promptly following its filing with the Commission.
(c) In the event that with respect to Transfer Restricted
Securities (i) the Company has not filed the Exchange Registration
Statement or Shelf Registration Statement on or before the date on
which such registration statement is required to be filed pursuant to
Section 2(a) or 2(b), respectively, or (ii) such Exchange Registration
Statement or Shelf Registration Statement has not become effective or
been declared effective by the Commission on or before the date on
which such registration statement is required to become or be declared
effective pursuant to Section 2(a) or 2(b), respectively, or (iii) on
or prior to the 215th day after the Closing Date, neither the Exchange
Offer has been consummated (if the Exchange Offer is then required to
be made) nor the Shelf Registration Statement has been declared
effective, or (iv) any Exchange Registration Statement or Shelf
Registration Statement required by Section 2(a) or 2(b) hereof is filed
and declared effective but shall thereafter during the period such
registration statement is required herein to remain effective either be
withdrawn by the Company or shall become subject to an effective stop
order issued pursuant to Section 8(d) of the Securities Act suspending
the effectiveness of such registration statement (except as
specifically permitted herein, including pursuant to Sections 3(c)(ii)
and 3(d)(iv)) without being succeeded immediately by an additional
registration statement filed and declared effective (each such event
referred to in clauses (i) through (iv), a "Registration Default" and
each period during which a Registration Default has occurred and is
continuing, a ("Registration Default Period"), then, the Company shall
pay to each holder of Transfer Restricted Securities affected thereby
as liquidated damages for such Registration Default, in addition to the
remedies provided by Section 9(b), special interest ("Special
Interest"), in addition to the Base Interest, shall accrue at a per
annum rate of 0.25% for
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the first 90 days of the Registration Default Period and at a per annum
rate of 0.50% for the second 90 days of the Registration Default Period
and at a per annum rate of 0.75% for the third 90 days of the
Registration Default Period and at a per annum rate of 1.0% thereafter
for the remaining portion of the Registration Default Period; provided,
however, that, with respect to any Transfer Restricted Security, the
Company will not pay Special Interest with respect to more than one
Registration Default at a time; provided, further, that the Company
shall have no obligation to pay Special Interest accrued after the date
that is two calendar days prior to the Effective Time to a holder of a
Transfer Restricted Security as a result of a Registration Default
arising in connection with the Shelf Registration Statement unless such
holder shall have previously returned a completed and signed Notice and
Questionnaire to the Company and the Guarantors in accordance with the
requirements of this Exchange and Registration Rights Agreement. All
accrued Special Interest will be paid by the Company on each Interest
Payment Date (as defined in the Indenture). Upon the cure of all
Registration Defaults, Special Interest shall no longer accrue,
provided, however, that if, after any such cure, a different
Registration Default occurs, then the Special Interest shall again
accrue in accordance with this Section 2(c).
(d) Any reference herein to a registration statement as
of any time shall be deemed to include any document incorporated, or
deemed to be incorporated, therein by reference as of such time and any
reference herein to any post-effective amendment to a registration
statement as of any time shall be deemed to include any document
incorporated, or deemed to be incorporated, therein by reference as of
such time.
3. Registration Procedures.
If the Company and the Guarantors file a registration statement
pursuant to Section 2(a) or Section 2(b), the following provisions shall apply:
(a) At or before the Effective Time of the Exchange
Registration or the Shelf Registration, as the case may be, the Company
and the Guarantors shall qualify the Indenture under the Trust
Indenture Act.
(b) In the event that such qualification would require
the appointment of a new trustee under the Indenture, the Company and
the Guarantors shall appoint a new trustee thereunder pursuant to the
applicable provisions of the Indenture.
(c) In connection with the Company's and the Guarantors'
obligations with respect to the registration of Exchange Securities as
contemplated by Section 2(a) (the "Exchange Registration"), if
applicable, the Company and the Guarantors shall, as soon as
practicable (or as otherwise specified):
(i) prepare and file with the Commission, as
soon as practicable but not later than 90 days after the
Closing Date, an Exchange Registration Statement on any form
which may be utilized by the Company and which shall permit
the Exchange Offer and resales of Exchange Securities by
broker-dealers during
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the Resale Period to be effected as contemplated by Section
2(a), and use its reasonable efforts to cause such Exchange
Registration Statement to become effective as soon as
practicable thereafter, but no later than 180 days after the
Closing Date;
(ii) as soon as practicable prepare and file with
the Commission such amendments and supplements to such
Exchange Registration Statement and the prospectus included
therein as may be necessary to effect and maintain the
effectiveness of such Exchange Registration Statement for the
periods and purposes contemplated in Section 2(a) hereof and
as may be required by the applicable rules and regulations of
the Commission and the instructions applicable to the form of
such Exchange Registration Statement, and promptly provide
each broker-dealer holding Exchange Securities with such
number of copies of the prospectus included therein (as then
amended or supplemented), in conformity in all material
respects with the requirements of the Securities Act and the
Trust Indenture Act and the rules and regulations of the
Commission thereunder, as such broker-dealer reasonably may
request prior to the expiration of the Resale Period, for use
in connection with resales of Exchange Securities, provided
that upon the occurrence of any event that would cause any
such Exchange Registration Statement or prospectus contained
therein (A) to contain a material misstatement or omission or
(B) not to be effective and usable for resale of Transfer
Restricted Securities, either of which occurs during the
period that the Company is required to maintain an effective
and usable Exchange Registration Statement and prospectus
pursuant to this Exchange and Registration Rights Agreement,
the Company shall use it reasonable efforts to file promptly
an appropriate amendment or supplement to such Exchange
Registration Statement or prospectus, (1) in the case of
clause (A), correcting any such misstatement or omission, and
(2) in the case of clauses (A) and (B) use its reasonable
efforts to cause any amendment to be declared effective and
such Exchange Registration Statement and the prospectus to
become usable for their intended purpose(s) as soon as
practicable thereafter; provided, further notwithstanding
anything to the contrary set forth in this Exchange and
Registration Rights Agreement, during the 180-day period
following consummation of the Exchange Offer, the Company's
obligation to use its reasonable efforts to keep the Exchange
Registration Statement continuously effective, supplemented
and amended shall be suspended in the event continued
effectiveness of the Exchange Registration Statement would,
with the advice of counsel to the Company, make it advisable
for the Company to disclose a material financing, acquisition
or other corporate transaction, and the Board of Directors
shall have determined in good faith that such disclosure is
not in the best interests of the Company, but in no event will
any such suspension, individually or in the aggregate, exceed
forty-five (45) days (such suspensions being referred to
herein as an "Exchange Suspension Period");
(iii) promptly notify each broker-dealer that has
requested or received from the Company copies of the
prospectus included in such registration
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statement, and confirm such advice in writing, (A) when such
Exchange Registration Statement or the prospectus included
therein or any prospectus amendment or supplement or
post-effective amendment has been filed, and, with respect to
such Exchange Registration Statement or any post-effective
amendment, when the same has become effective, (B) of the
receipt of any comments by the Commission or any request by
the Commission for amendments or supplements to such Exchange
Registration Statement or prospectus or for additional
information, (C) of the issuance by the Commission of any stop
order suspending the effectiveness of such Exchange
Registration Statement or the initiation or threatening of any
proceedings for that purpose, (D) if at any time the
representations and warranties of the Company or the
Guarantors contemplated by Section 5 cease to be true and
correct in all material respects, (E) of the receipt by the
Company or any Subsidiary Guarantor of any notification with
respect to the suspension of the qualification of the Exchange
Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, or (F)(I) at
any time during the Resale Period when a prospectus is
required to be delivered under the Securities Act, that such
Exchange Registration Statement, prospectus, prospectus
amendment or supplement or post-effective amendment does not
conform in all material respects to the applicable
requirements of the Securities Act and the Trust Indenture Act
and the rules and regulations of the Commission thereunder or
contains an untrue statement of a material fact or omits to
state any material fact required to be stated therein or
necessary to make the statements therein not misleading in
light of the circumstances then existing or (II) of the
occurrence of an Exchange Suspension Period. Each holder of
Transfer Restricted Securities agrees that upon receipt of any
notice from the Company pursuant to this Section 3(c)(iii)(F),
such holder shall forthwith discontinue the disposition of
Transfer Restricted Securities pursuant to the Exchange
Registration Statement applicable to such Transfer Restricted
Securities until such holder shall have received copies of
such amended or supplemented prospectus, and if so directed by
the Company, such holder shall deliver to the Company (at the
Company's expense) all copies, other than permanent file
copies, then in such holder's possession of the prospectus
covering such Transfer Restricted Securities at the time of
receipt of such notice;
(iv) in the event that the Company would be
required, pursuant to Section 3(c)(iii)(F) above, to notify
any broker-dealers holding Exchange Securities, promptly,
subject to Section 3(c)(ii) above, prepare and furnish to each
such holder a reasonable number of copies of a prospectus
supplemented or amended so that, as thereafter delivered to
purchasers of such Exchange Securities during the Resale
Period, such prospectus shall conform in all material respects
to the applicable requirements of the Securities Act and the
Trust Indenture Act and the rules and regulations of the
Commission thereunder and shall not contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading in light of the
circumstances then existing;
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(v) subject to the provisions in Section
3(c)(ii) above, use their reasonable efforts to obtain the
withdrawal of any order suspending the effectiveness of such
Exchange Registration Statement or any post-effective
amendment thereto at the earliest practicable date;
(vi) use their reasonable efforts to (A) register
or qualify the Exchange Securities under the securities laws
or blue sky laws of such jurisdictions as are contemplated by
Section 2(a) no later than the commencement of the Exchange
Offer, (B) if applicable, keep such registrations or
qualifications in effect and comply with such laws so as to
permit the continuance of offers, sales and dealings therein
in such jurisdictions until the expiration of the Resale
Period and (C) take any and all other actions as may be
reasonably necessary or advisable to enable each broker-dealer
holding Exchange Securities to consummate the disposition
thereof in such jurisdictions; provided, however, that the
Company or any Subsidiary Guarantor shall not be required for
any such purpose to (1) qualify as a foreign corporation in
any jurisdiction wherein it would not otherwise be required to
qualify but for the requirements of this Section 3(c)(vi), (2)
consent to general service of process in any such jurisdiction
or (3) make any changes to its certificate of incorporation or
by-laws or any agreement between it and its stockholders;
(vii) use their reasonable efforts to obtain the
consent or approval of each governmental agency or authority,
whether federal, state or local, which may be required to
effect the Exchange Registration, the Exchange Offer and the
offering and sale of Exchange Securities by broker-dealers
during the Resale Period;
(viii) provide a CUSIP number for all Exchange
Securities, not later than the applicable Effective Time;
(ix) comply with all applicable rules and
regulations of the Commission, and make generally available to
the Company's securityholders as soon as practicable but no
later than eighteen months after the effective date of such
Exchange Registration Statement, an earning statement of the
Company and its subsidiaries complying with Section 11(a) of
the Securities Act (including, at the option of the Company,
Rule 158 thereunder).
(d) In connection with the Company's and the Guarantors'
obligations with respect to the registration of Transfer Restricted
Securities as contemplated by Section 2(b) pursuant to the Shelf
Registration, if applicable, the Company and the Guarantors shall, as
soon as practicable (or as otherwise specified):
(i) prepare and file with the Commission, as
soon as practicable but in any case within the time periods
specified in Section 2(b), a Shelf Registration Statement on
any form which may be utilized by the Company and which shall
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register all of the Transfer Restricted Securities for resale
by the holders thereof in accordance with such method or
methods of disposition as may be specified by such of the
holders as, from time to time, may be Electing Holders and use
their best efforts to cause such Shelf Registration Statement
to become effective as soon as practicable but in any case
within the time periods specified in Section 2(b);
(ii) not less than 30 calendar days prior to the
Effective Time of the Shelf Registration Statement, mail the
Notice and Questionnaire to the holders of Transfer Restricted
Securities; no holder shall be entitled to be named as a
selling securityholder in the Shelf Registration Statement as
of the Effective Time, and no holder shall be entitled to use
the prospectus forming a part thereof for resales of Transfer
Restricted Securities at any time, unless such holder has
returned a completed and signed Notice and Questionnaire to
the Company by the deadline for response set forth therein;
provided, however, holders of Transfer Restricted Securities
shall have at least 28 calendar days from the date on which
the Notice and Questionnaire is first mailed to such holders
to return a completed and signed Notice and Questionnaire to
the Company;
(iii) after the Effective Time of the Shelf
Registration Statement, upon the request of any holder who is
a subsequent transferee after such Effective Time of
Securities that are then registered for resale pursuant to the
Shelf Registration Statement, promptly send a Notice and
Questionnaire to such holder; provided that the Company and
the Guarantors shall not be required to take any action to
name such holder as a selling securityholder in the Shelf
Registration Statement or to enable such holder to use the
prospectus forming a part thereof for resales of Registrable
Securities until such holder has returned a completed and
signed Notice and Questionnaire to the Company;
(iv) as soon as practicable prepare and file with
the Commission such amendments and supplements to such Shelf
Registration Statement and the prospectus included therein as
may be necessary to effect and maintain the effectiveness of
such Shelf Registration Statement for the period specified in
Section 2(b) hereof and as may be required by the applicable
rules and regulations of the Commission and the instructions
applicable to the form of such Shelf Registration Statement,
and furnish to the Electing Holders copies of any such
supplement or amendment simultaneously with or prior to its
being used or filed with the Commission, provided that upon
the occurrence of any event that would cause any such Shelf
Registration Statement or the prospectus contained therein (A)
to contain a material misstatement or omission or (B) not to
be effective and usable for resale of Transfer Restricted
Securities, either of which occurs during the period that the
Company is required to maintain an effective and usable Shelf
Registration Statement and prospectus pursuant to this
Exchange and Registration Rights Agreement, the Company shall
use its reasonable efforts to file promptly an appropriate
amendment or supplement to such Registration Statement or
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prospectus, (1) in the case of clause (A), correcting any such
misstatement or omission, and (2) in the case of clauses (A)
and (B) use its reasonable efforts to cause any amendment to
be declared effective and such Shelf Registration Statement
and the related prospectus to become usable for their intended
purpose(s) as soon as practicable thereafter; provided further
notwithstanding anything to the contrary set forth in this
Exchange and Registration Rights Agreement, the Company's
obligations to use its reasonable efforts to keep the Shelf
Registration Statement continuously effective, supplemented
and amended shall be suspended in the event continued
effectiveness of the Shelf Registration Statement would, with
the advice of counsel to the Company, make it advisable for
the Company to disclose a material financing, acquisition or
other corporate transaction, and the Board of Directors shall
have determined in good faith that such disclosure is not in
the best interests of the Company, but in any 365-day period,
no suspension shall be for a period of more than forty-five
(45) consecutive days, all suspensions shall not exceed an
aggregate of sixty (60) days (such suspensions being referred
to herein as a "Shelf Suspension Period");
(v) comply with the provisions of the Securities
Act with respect to the disposition of all of the Transfer
Restricted Securities covered by such Shelf Registration
Statement in accordance with the intended methods of
disposition by the Electing Holders provided for in such Shelf
Registration Statement;
(vi) provide (A) the Electing Holders, (B) the
underwriters (which term, for purposes of this Exchange and
Registration Rights Agreement, shall include a person deemed
to be an underwriter within the meaning of Section 2(a)(11) of
the Securities Act), if any, thereof, (C) any sales or
placement agent therefor, (D) counsel for any such underwriter
or agent and (E) not more than one counsel for all the
Electing Holders the opportunity to review and comment on such
Shelf Registration Statement, each prospectus included therein
or filed with the Commission and each amendment or supplement
thereto; provided that the Company shall not be required to
take any actions under this Section 3(d)(vi) that are not, in
the reasonable opinion of counsel for the Company in
compliance with applicable law.
(vii) for a reasonable period prior to the filing
of such Shelf Registration Statement, and throughout the
period specified in Section 2(b), make available at reasonable
times at the Company's principal place of business or such
other reasonable place for inspection by the persons referred
to in Section 3(d)(vi) who shall certify to the Company that
they have a current intention to sell the Transfer Restricted
Securities pursuant to the Shelf Registration such financial
and other information and books and records of the Company and
the Guarantors, and cause the officers, employees, counsel and
independent certified public accountants of the Company or the
Guarantors, as the case may be, to respond to such inquiries,
as shall be reasonably necessary, in the judgment of the
respective counsel referred to in such Section, to conduct a
reasonable investigation within the
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meaning of Section 11 of the Securities Act; provided,
however, that each such party shall be required to maintain in
confidence and not to disclose to any other person any
information or records reasonably designated by the Company or
the Guarantors as being confidential, until such time as (A)
such information becomes a matter of public record (whether by
virtue of its inclusion in such registration statement or
otherwise), or (B) such person shall be required so to
disclose such information pursuant to a subpoena or order of
any court or other governmental agency or body having
jurisdiction over the matter (subject to the requirements of
such order, and only after such person shall have given the
Company prompt prior written notice of such requirement), or
(C) after the Effective Time and after having requested, in
writing, that the Company include such information in such
Shelf Registration Statement or an amendment or supplement
thereto, and neither such request has been accepted by the
Company within 14 calendar days of such request nor a Shelf
Suspension Period is in effect, such information, in the
reasonable judgment of such party pursuant to advice of
counsel, is required to be set forth in such Shelf
Registration Statement or the prospectus included therein or
in an amendment to such Shelf Registration Statement or an
amendment or supplement to such prospectus in order that such
Shelf Registration Statement, prospectus, amendment or
supplement, as the case may be, complies with applicable
requirements of the federal securities laws and the rules and
regulations of the Commission and does not contain an untrue
statement of a material fact or omit to state therein a
material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the
circumstances then existing;
(viii) promptly notify each of the Electing
Holders, any sales or placement agent therefor and any
underwriter thereof (which notification may be made through
any managing underwriter that is a representative of such
underwriter for such purpose) and confirm such advice in
writing, (A) when such Shelf Registration Statement or the
prospectus included therein or any prospectus amendment or
supplement or post-effective amendment has been filed, and,
with respect to such Shelf Registration Statement or any
post-effective amendment, when the same has become effective,
(B) of the receipt of any comments by the Commission with
respect thereto or any request by the Commission for
amendments or supplements to such Shelf Registration Statement
or prospectus or for additional information, (C) of the
issuance by the Commission of any stop order suspending the
effectiveness of such Shelf Registration Statement or the
initiation or threatening of any proceedings for that purpose,
(D) if at any time the representations and warranties of the
Company contemplated by Section 3(d)(xvii) or Section 5 cease
to be true and correct in all material respects, (E) of the
receipt by the Company of any notification with respect to the
suspension of the qualification of the Transfer Restricted
Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, or (F)(i) if
at any time when a prospectus is required to be delivered
under the Securities Act, that such Shelf Registration
Statement, prospectus, prospectus
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amendment or supplement or post-effective amendment does not
conform in all material respects to the applicable
requirements of the Securities Act and the Trust Indenture Act
and the rules and regulations of the Commission thereunder or
contains an untrue statement of a material fact or omits to
state any material fact required to be stated therein or
necessary to make the statements therein not misleading in
light of the circumstances then existing or (ii) the
occurrence of a Shelf Suspension Period;
(ix) subject to the provisions in Section 3(d)
(iv) use their reasonable efforts to obtain the withdrawal of
any order suspending the effectiveness of such registration
statement or any post-effective amendment thereto at the
earliest practicable date;
(x) if requested by any managing underwriter or
underwriters, any placement or sales agent or any Electing
Holder, promptly incorporate in a prospectus supplement or
post-effective amendment such information as is required by
the applicable rules and regulations of the Commission and as
such managing underwriter or underwriters, such agent or such
Electing Holder specifies should be included therein relating
to the terms of the sale of such Transfer Restricted
Securities, including information with respect to the
principal amount of Transfer Restricted Securities being sold
by such Electing Holder or agent or to any underwriters, the
name and description of such Electing Holder, agent or
underwriter, the offering price of such Transfer Restricted
Securities and any discount, commission or other compensation
payable in respect thereof, the purchase price being paid
therefor by such underwriters and with respect to any other
terms of the offering of the Transfer Restricted Securities to
be sold by such Electing Holder or agent or to such
underwriters; and make all required filings of such prospectus
supplement or post-effective amendment promptly after
notification of the matters to be incorporated in such
prospectus supplement or post-effective amendment;
(xi) furnish to each Electing Holder, each
placement or sales agent, if any, therefor, each underwriter,
if any, thereof and the respective counsel referred to in
Section 3(d)(vi) a conformed copy of such Shelf Registration
Statement, each such amendment and supplement thereto (in each
case including all exhibits thereto (in the case of an
Electing Holder of Transfer Restricted Securities, upon
request) and, to the extent requested, documents incorporated
by reference therein) and such number of copies of such Shelf
Registration Statement (excluding exhibits thereto and
documents incorporated by reference therein unless
specifically so requested by such Electing Holder, agent or
underwriter, as the case may be) and of the prospectus
included in such Shelf Registration Statement (including each
preliminary prospectus and any summary prospectus), in
conformity in all material respects with the applicable
requirements of the Securities Act and the Trust Indenture Act
and the rules and regulations of the Commission thereunder,
and such other documents, as such Electing Holder,
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agent, if any, and underwriter, if any, may reasonably request
in order to facilitate the offering and disposition of the
Transfer Restricted Securities owned by such Electing Holder,
offered or sold by such agent or underwritten by such
underwriter and to permit such Electing Holder, agent and
underwriter to satisfy the prospectus delivery requirements of
the Securities Act; and the Company and the Guarantors hereby
consent, unless they have otherwise notified the Electing
Holder under Section 3(d)(iv) or 3(d)(viii) hereof, to the use
of such prospectus (including such preliminary and summary
prospectus) and any amendment or supplement thereto by each
such Electing Holder and by any such agent and underwriter, in
each case in the form most recently provided to such person by
the Company and the Guarantors, in connection with the
offering and sale of the Transfer Restricted Securities
covered by the prospectus (including such preliminary and
summary prospectus) or any supplement or amendment thereto;
(xii) use their reasonable efforts to (A) register
or qualify the Transfer Restricted Securities to be included
in such Shelf Registration Statement under such securities
laws or blue sky laws of such jurisdictions as any Electing
Holder and each placement or sales agent, if any, therefor and
underwriter, if any, thereof shall reasonably request, (B)
keep such registrations or qualifications in effect and comply
with such laws so as to permit the continuance of offers,
sales and dealings therein in such jurisdictions during the
period the Shelf Registration is required to remain effective
under Section 2(b) above and for so long as may be necessary
to enable any such Electing Holder, agent or underwriter to
complete its distribution of Securities pursuant to such Shelf
Registration Statement and (C) take any and all other actions
as may be reasonably necessary or advisable to enable each
such Electing Holder, agent, if any, and underwriter, if any,
to consummate the disposition in such jurisdictions of such
Transfer Restricted Securities; provided, however, that the
Company or any Subsidiary Guarantor shall not be required for
any such purpose to (1) qualify as a foreign corporation in
any jurisdiction wherein it would not otherwise be required to
qualify but for the requirements of this Section 3(d)(xii),
(2) consent to general service of process in any such
jurisdiction or (3) make any changes to its certificate of
incorporation or by-laws or any agreement between it and its
stockholders;
(xiii) use their reasonable efforts to obtain the
consent or approval of each governmental agency or authority,
whether federal, state or local, which may be required to
effect the Shelf Registration or the offering or sale in
connection therewith or to enable the selling holder or
holders to offer, or to consummate the disposition of, their
Transfer Restricted Securities;
(xiv) Unless any Transfer Restricted Securities
shall be in book-entry only form, cooperate with the Electing
Holders and the managing underwriters, if any, to facilitate
the timely preparation and delivery of certificates
representing Transfer Restricted Securities to be sold, which
certificates, if so required by any securities exchange upon
which any Registrable Securities are listed, shall be
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printed, lithographed or engraved, or produced by any
combination of such methods, on steel engraved borders, and
which certificates shall not bear any restrictive legends;
and, in the case of an underwritten offering, enable such
Transfer Restricted Securities to be in such denominations and
registered in such names as the managing underwriters may
request at least two business days prior to any sale of the
Transfer Restricted Securities;
(xv) provide a CUSIP number for all Transfer
Restricted Securities, not later than the applicable Effective
Time;
(xvi) enter into one or more underwriting
agreements, engagement letters, agency agreements, "best
efforts" underwriting agreements or similar agreements, as
appropriate, including customary provisions relating to
indemnification and contribution, and take such other actions
in connection therewith as any Electing Holders aggregating at
least 20% in aggregate principal amount of the Transfer
Restricted Securities at the time outstanding shall request in
order to expedite or facilitate the disposition of such
Transfer Restricted Securities;
(xvii) whether or not an agreement of the type
referred to in Section 3(d)(xvi) hereof is entered into and
whether or not any portion of the offering contemplated by the
Shelf Registration is an underwritten offering or is made
through a placement or sales agent or any other entity, (A)
make such representations and warranties to the Electing
Holders and the placement or sales agent, if any, therefor and
the underwriters, if any, thereof in form, substance and scope
as are customarily made in connection with an offering of debt
securities pursuant to any appropriate agreement or to a
registration statement filed on the form applicable to the
Shelf Registration; (B) obtain an opinion of counsel to the
Company in customary form and covering such matters, of the
type customarily covered by such an opinion, as the managing
underwriters, if any, or as any Electing Holders of at least
20% in aggregate principal amount of the Transfer Restricted
Securities at the time outstanding may reasonably request,
addressed to such Electing Holder or Electing Holders and the
placement or sales agent, if any, therefor and the
underwriters, if any, thereof and dated the effective date of
such Shelf Registration Statement (and if such Shelf
Registration Statement contemplates an underwritten offering
of a part or all of the Transfer Restricted Securities, dated
the date of the closing under the underwriting agreement
relating thereto) (it being agreed that the matters to be
covered by such opinion shall include the due incorporation
and good standing of the Company and the Guarantors; the
qualification of each of the Company and the Guarantors to
transact business as foreign corporations; the due
authorization, execution and delivery of the relevant
agreement of the type referred to in Section 3(d)(xvi) hereof;
the due authorization, execution, authentication and issuance,
and the validity and enforceability, of the Securities; the
absence of knowledge of such counsel of material legal or
governmental proceedings involving the Company;
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the absence of a breach by the Company or any of its
subsidiaries of, or a default under material agreements
binding upon the Company or any subsidiary; the absence of
governmental approvals required to be obtained in connection
with the Shelf Registration, the offering and sale of the
Transfer Restricted Securities, this Exchange and Registration
Rights Agreement or any agreement of the type referred to in
Section 3(d)(xvi) hereof, except such approvals as are
referenced in the Shelf Registration Statement or as may be
required under state securities or blue sky laws; the material
compliance as to form of such Shelf Registration Statement and
any documents incorporated by reference therein and of the
Indenture with the requirements of the Securities Act and the
Trust Indenture Act and the rules and regulations of the
Commission thereunder, respectively; and, as of the date of
the opinion and of the Shelf Registration Statement or most
recent post-effective amendment thereto, as the case may be, a
statement as to the absence of any facts having come to such
counsel's attention that cause such counsel to believe that,
as of the date of such opinion, such Shelf Registration
Statement and the prospectus included therein, as then amended
or supplemented, and the documents incorporated by reference
therein (in each case other than the financial statements and
related schedules and other financial information contained
therein) in the case of the Shelf Registration Statement,
contained an untrue statement of material fact or omitted to
state a material fact necessary to make the statements therein
not misleading, and in the case of the documents incorporated
by reference and the prospectus, contained an untrue statement
of a material fact or omitted to state a material fact
necessary to make the statements therein in light of the
circumstances under which they were made, not misleading; (C)
obtain a comfort letter or letters from the independent
certified public accountants of the Company addressed to the
selling Electing Holders, the placement or sales agent, if
any, therefor or the underwriters, if any, thereof, dated (i)
the effective date of such Shelf Registration Statement and
(ii) the effective date of any prospectus supplement to the
prospectus included in such Shelf Registration Statement or
post-effective amendment to such Shelf Registration Statement
which includes unaudited or audited financial statements as of
a date or for a period subsequent to that of the latest such
statements included in such prospectus (and, if such Shelf
Registration Statement contemplates an underwritten offering
pursuant to any prospectus supplement to the prospectus
included in such Shelf Registration Statement or
post-effective amendment to such Shelf Registration Statement
which includes unaudited or audited financial statements as of
a date or for a period subsequent to that of the latest such
statements included in such prospectus, dated the date of the
closing under the underwriting agreement relating thereto),
such letter or letters to be in customary form and covering
such matters of the type customarily covered by letters of
such type; and (D) deliver such documents and certificates,
including officers' certificates, as may be reasonably
requested by any Electing Holders of at least 20% in aggregate
principal amount of the Transfer Restricted Securities at the
time outstanding or the placement or sales agent, if any,
therefor and the managing underwriters, if any, thereof to
evidence the accuracy of the
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representations and warranties made pursuant to clause (A)
above or those contained in Section 5(a) hereof and the
compliance with or satisfaction of any agreements or
conditions contained in the underwriting agreement or other
agreement entered into by the Company and (E) undertake such
obligations relating to expense reimbursement, indemnification
and contribution as are provided in Section 6 hereof;
(xviii) notify in writing each holder of Transfer
Restricted Securities of any proposal by the Company to amend
or waive any provision of this Exchange and Registration
Rights Agreement pursuant to Section 9(h) hereof and of any
amendment or waiver effected pursuant thereto, each of which
notices shall contain the text of the amendment or waiver
proposed or effected, as the case may be;
(xix) in the event that any broker-dealer registered
under the Exchange Act shall underwrite any Transfer
Restricted Securities or participate as a member of an
underwriting syndicate or selling group or "assist in the
distribution" (within the meaning of the Conduct Rules (the
"Conduct Rules) of the National Association of Securities
Dealers, Inc. ("NASD") or any successor thereto, as amended
from time to time) thereof, whether as a holder of such
Transfer Restricted 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 Conduct Rules, including by (A)
if such Conduct Rules shall so require, engaging a "qualified
independent underwriter" (as defined in such Conduct Rules) to
participate in the preparation of the Shelf Registration
Statement relating to such Transfer Restricted Securities, to
exercise usual standards of due diligence in respect thereto
and, if any portion of the offering contemplated by such Shelf
Registration Statement is an underwritten offering or is made
through a placement or sales agent, to recommend the yield of
such Transfer Restricted Securities, (B) indemnifying any such
qualified independent underwriter to the extent of the
indemnification of underwriters provided in Section 6 hereof
(or to such other customary extent as may be requested by such
underwriter), 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 Conduct
Rules; and
(xx) comply with all applicable rules and
regulations of the Commission, and make generally available to
its securityholders as soon as practicable but in any event
not later than eighteen months after the effective date of
such Shelf Registration Statement, an earning statement of the
Company and its subsidiaries complying with Section 11(a) of
the Securities Act (including, at the option of the Company,
Rule 158 thereunder).
(e) In the event that the Company and the Guarantors
would be required, pursuant to Section 3(d)(viii)(F) above, to notify
the Electing Holders, the placement or
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sales agent, if any, therefor and the managing underwriters, if any,
thereof, the Company and the Guarantors shall promptly, subject to
Section 3(d)(iv), prepare and furnish to each of the Electing Holders,
to each placement or sales agent, if any, and to each such underwriter,
if any, a reasonable number of copies of a prospectus supplemented or
amended so that, as thereafter delivered to purchasers of Transfer
Restricted Securities, such prospectus shall conform in all material
respects to the applicable requirements of the Securities Act and the
Trust Indenture Act and the rules and regulations of the Commission
thereunder and shall not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing. Each Electing Holder agrees that upon
receipt of any notice from the Company pursuant to Section 3(d)(viii)
(F) hereof, such Electing Holder shall forthwith discontinue the
disposition of Transfer Restricted Securities pursuant to the Shelf
Registration Statement applicable to such Transfer Restricted
Securities until such Electing Holder shall have received copies of
such amended or supplemented prospectus, and if so directed by the
Company, such Electing Holder shall deliver to the Company (at the
Company's expense) all copies, other than permanent file copies, then
in such Electing Holder's possession of the prospectus covering such
Transfer Restricted Securities at the time of receipt of such notice.
(f) In the event of a Shelf Registration, in addition to
the information required to be provided by each Electing Holder in its
Notice and Questionnaire, the Company and the Guarantors may require
such Electing Holder to furnish to the Company and the Guarantors such
additional information regarding such Electing Holder and such Electing
Holder's intended method of distribution of Transfer Restricted
Securities as may be required in order to comply with the Securities
Act. Each such Electing Holder agrees to notify the Company as promptly
as practicable of any inaccuracy or change in information previously
furnished by such Electing Holder to the Company or of the occurrence
of any event in either case as a result of which any prospectus
relating to such Shelf Registration contains or would contain an untrue
statement of a material fact regarding such Electing Holder or such
Electing Holder's intended method of disposition of such Transfer
Restricted Securities or omits to state any material fact regarding
such Electing Holder or such Electing Holder's intended method of
disposition of such Transfer Restricted Securities required to be
stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing, and promptly to
furnish to the Company any additional information required to correct
and update any previously furnished information or required so that
such prospectus shall not contain, with respect to such Electing Holder
or the disposition of such Transfer Restricted Securities, an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing.
(g) Until the expiration of two years after the Closing
Date, the Company will not, and will not permit any of the Guarantors
and other "affiliates" (as defined in Rule 144 under the Securities
Act) to resell any of the Securities that have been reacquired by
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any of them except pursuant to an effective registration statement
under the Securities Act.
(h) Upon (i) the filing of any Exchange Registration
Statement or Shelf Registration Statement and (ii) upon the
effectiveness of any Exchange Registration Statement or Shelf
Registration, announce the same, in each case, by release to Reuters
Economic Services and Bloomberg Business news.
(i) As a condition to its participation in the Exchange
Offer pursuant to the terms of this Exchange and Registration Rights
Agreement, each holder of Transfer Restricted Securities shall furnish,
upon written request of the Company or any of the Subsidiary
Guarantors, prior to the completion of the Exchange Offer, a written
representation to the Company, (which may be contained in the letter of
transmittal contemplated by the Exchange Offer Registration Statement)
to the effect that (A) it is not an affiliate of the Company or any of
the Subsidiary Guarantors, (B) it is not engaged in, and does not
intend to engage in, and has no arrangement or understanding with any
person to participate in, a distribution of the Exchange Securities to
be issued in the Exchange Offer and (C) it is acquiring the Exchange
Securities in its ordinary course of business. Each holder hereby
acknowledges and agrees that any broker-dealer and any such holder
using the Exchange Offer to participate in a distribution of the
securities to be acquired in the Exchange Offer (1) could not under
Commission policy as in effect on the date of this Exchange and
Registration Rights Agreement rely on the position of the Commission
enunciated in Morgan Stanley and Co., Inc. (available June 5, 1991) and
Exxon Capital Holdings Corporation (available May 13, 1988), as
interpreted in the Commission's letter to Shearman & Sterling dated
July 2, 1993, and similar no-action letters, and (2) must comply with
the registration and prospectus delivery requirements of the Act in
connection with a secondary resale transaction and that such a
secondary resale transaction must be covered by an effective
registration statement containing the selling securityholder
information required by Item 507 or 508, as applicable, of Regulation
S-K if the resales are of Exchange Securities obtained by such holder
in exchange for securities acquired by such holder directly from the
Company or an affiliate thereof.
4. Registration Expenses.
The Company and the Guarantors agree that the Company shall bear and
pay or cause to be paid promptly all expenses incident to the Company's
performance of or compliance with this Exchange and Registration Rights
Agreement, including (a) all Commission and any NASD registration, filing and
review fees and expenses including fees and disbursements of counsel for the
placement or sales agent or underwriters in connection with such registration,
filing and review, (b) all fees and expenses in connection with the
qualification of the Securities for offering and sale under the State securities
and blue sky laws referred to in Section 3(d)(xii) hereof and determination of
their eligibility for investment under the laws of such jurisdictions as any
managing underwriters or the Electing Holders may designate, including any fees
and disbursements of counsel for the Electing Holders (subject to the
limitations of Clause (i) below) or underwriters in connection with such
qualification and determination, (c) all expenses relating
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to the preparation, printing, production, distribution and reproduction of each
registration statement required to be filed hereunder, each prospectus included
therein or prepared for distribution pursuant hereto, each amendment or
supplement to the foregoing, the expenses of preparing the Securities for
delivery and the expenses of printing or producing any underwriting agreements,
agreements among underwriters, selling agreements and blue sky or legal
investment memoranda and all other documents in connection with the offering,
sale or delivery of Securities to be disposed of (including certificates
representing the Securities), (d) messenger, telephone and delivery expenses
relating to the offering, sale or delivery of Securities and the preparation of
documents referred in clause (c) above, (e) fees and expenses of the Trustee
under the Indenture, any agent of the Trustee and any counsel for the Trustee
and of any collateral agent or custodian, (f) internal expenses (including all
salaries and expenses of the Company's officers and employees performing legal
or accounting duties), (g) fees, disbursements and expenses of counsel and
independent certified public accountants of the Company (including the expenses
of any opinions or "cold comfort" letters required by or incident to such
performance and compliance), (h) fees, disbursements and expenses of any
"qualified independent underwriter" engaged pursuant to Section 3(d)(xix)
hereof, (i) fees, disbursements and expenses of one counsel for the Electing
Holders retained in connection with a Shelf Registration, as selected by the
Electing Holders of at least a majority in aggregate principal amount of the
Transfer Restricted Securities held by Electing Holders (which counsel shall be
reasonably satisfactory to the Company), (j) any fees charged by securities
rating services for rating the Securities, and (k) fees, expenses and
disbursements of any other persons, including special experts, retained by the
Company in connection with such registration (collectively, the "Registration
Expenses"). To the extent that any Registration Expenses are incurred, assumed
or paid by any holder of Transfer Restricted Securities or any placement or
sales agent therefor or underwriter thereof, the Company shall reimburse such
person for the full amount of the Registration Expenses so incurred, assumed or
paid promptly after receipt of a request therefor. Notwithstanding the
foregoing, the holders of the Transfer Restricted Securities being registered
shall pay all agency fees and commissions and underwriting discounts and
commissions attributable to the sale of such Transfer Restricted Securities and
the fees and disbursements of any counsel or other advisors or experts retained
by such holders (severally or jointly), other than the counsel and experts
specifically referred to above.
5. Representations and Warranties.
The Company and the Guarantors represent and warrant to, and agree
with, each Purchaser and each of the holders from time to time of Transfer
Restricted Securities that:
(a) Each registration statement covering Transfer
Restricted Securities and each prospectus (including any preliminary or
summary prospectus) contained therein or furnished pursuant to Section
3(d) or Section 3(c) hereof and any further amendments or supplements
to any such registration statement or prospectus, when it becomes
effective or is filed with the Commission, as the case may be, and, in
the case of an underwritten offering of Transfer Restricted Securities,
at the time of the closing under the underwriting agreement relating
thereto, will conform in all material respects to the applicable
requirements of the Securities Act and the Trust Indenture Act and the
rules
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and regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; and at all times subsequent to the Effective
Time when a prospectus would be required to be delivered under the
Securities Act, other than from (i) such time as a notice has been
given to holders of Registrable Securities pursuant to Section
3(d)(viii)(F) or Section 3(c)(iii)(F) hereof until (ii) such time as
the Company furnishes an amended or supplemented prospectus pursuant to
Section 3(e) or Section 3(c)(iv) hereof, each such registration
statement, and each prospectus (including any summary prospectus)
contained therein or furnished pursuant to Section 3(d) or Section 3(c)
hereof, as then amended or supplemented, will conform in all material
respects to the requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission
thereunder and will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of
the circumstances then existing; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by a holder of Transfer Restricted
Securities expressly for use therein.
(b) Any documents incorporated by reference in any
prospectus referred to in Section 5(a) hereof, when they become or
became effective or are or were filed with the Commission, as the case
may be, will conform or conformed in all material respects to the
requirements of the Securities Act or the Exchange Act, as applicable,
and none of such documents will contain or contained an untrue
statement of a material fact or will omit or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by a holder of Transfer Restricted
Securities expressly for use therein.
(c) The compliance by the Company and the Guarantors with
all of the provisions of this Exchange and Registration Rights
Agreement and the consummation of the transactions herein contemplated
will not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any (i) indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any subsidiary of the Company is a
party or by which the Company or any subsidiary of the Company is bound
or to which any of the property or assets of the Company or any
subsidiary of the Company is subject except for such conflicts,
preaches, violations or defaults that would not result in a Material
Adverse Effect, (ii) nor will such action result in any violation of
(A) the provisions of the certificate of incorporation, as amended, or
the by-laws of the Company or any Subsidiary Guarantor or (B) any
applicable statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any
subsidiary of the Company or any of their properties, except for such
violations in (ii)(B) that would not result in a Material Adverse
Effect; and (iii) no consent, approval, authorization, order,
registration or
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qualification of or with any such court or governmental agency or body
is required for the consummation by the Company and the Guarantors of
the transactions contemplated by this Exchange and Registration Rights
Agreement, except the registration under the Securities Act of the
Securities, qualification of the Indenture under the Trust Indenture
Act and such consents, approvals, authorizations, registrations or
qualifications as may be required under State securities or blue sky
laws in connection with the offering and distribution of the
Securities.
(d) This Exchange and Registration Rights Agreement has
been duly authorized, executed and delivered by the Company and the
Guarantors.
6. Indemnification.
(a) Indemnification by the Company and the Guarantors.
The Company and the Guarantors will indemnify and hold harmless each of
the holders of Transfer Restricted Securities included in an Exchange
Registration Statement, each of the Electing Holders of Transfer
Restricted Securities included in a Shelf Registration Statement and
each person who participates as a placement or sales agent or as an
underwriter in any offering or sale of such Transfer Restricted
Securities against any losses, claims, damages or liabilities, joint or
several, to which such holder, agent or underwriter may become subject
under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Exchange Registration Statement or Shelf
Registration Statement, as the case may be, under which such Transfer
Restricted Securities were registered under the Securities Act, or any
preliminary, final or summary prospectus contained therein or furnished
by the Company or the Guarantors to any such holder, Electing Holder,
agent or underwriter, or any amendment or supplement thereto, or arise
out of or are based upon an untrue statement of material fact or the
omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading,
and the Company shall, and it hereby agrees to, reimburse such holder,
such Electing Holder, such agent and such underwriter for any legal or
other expenses reasonably incurred by them in connection with
investigating or defending any such action or claim as such expenses
are incurred; provided, however, that neither the Company nor the
Guarantors shall be liable to any such person in any such case to the
extent that any such loss, claim, damage or liability arises out of or
is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in such registration statement, or
preliminary, final or summary prospectus, or amendment or supplement
thereto, in reliance upon and in conformity with written information
furnished to the Company or the Guarantors by such person expressly for
use therein.
(b) Indemnification by the Holders and any Agents and
Underwriters. The Company and the Guarantors may require, as a
condition to including any Transfer Restricted Securities in any
registration statement filed pursuant to Section 2(b) hereof
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and to entering into any underwriting agreement with respect thereto,
that the Company and the Guarantors shall have received an undertaking
reasonably satisfactory to it from the Electing Holder of such Transfer
Restricted Securities and from each underwriter named in any such
underwriting agreement, severally and not jointly, to (i) indemnify and
hold harmless the Company, the Guarantors and all other holders of
Transfer Restricted Securities, against any losses, claims, damages or
liabilities to which the Company, the Guarantors or such other holders
of Transfer Restricted Securities may become subject, under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in such registration statement, or any preliminary, final or
summary prospectus contained therein or furnished by the Company or the
Guarantors to any such Electing Holder, agent or underwriter, or any
amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with
written information furnished to the Company or the Guarantors by such
Electing Holder, agent or underwriter expressly for use therein, and
(ii) reimburse the Company and the Guarantors for any legal or other
expenses reasonably incurred by the Company and the Guarantors in
connection with investigating or defending any such action or claim as
such expenses are incurred; provided, however, that no such Electing
Holder shall be required to undertake liability to any person under
this Section 6(b) for any amounts in excess of the dollar amount of the
proceeds to be received by such Electing Holder from the sale of such
Electing Holder's Registrable Securities pursuant to such registration.
(c) Notices of Claims, Etc. Promptly after receipt by an
indemnified party under subsection (a) or (b) above of written notice
of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against an indemnifying party
pursuant to the indemnification provisions of or contemplated by this
Section 6, notify such indemnifying party in writing of the
commencement of such action; but the omission so to notify the
indemnifying party shall not relieve the indemnifying party from any
liability which it may have to any indemnified party otherwise than
under the indemnification provisions of or contemplated by Section 6(a)
or 6(b) hereof. In case any such action shall be brought against any
indemnified party and it shall notify an indemnifying party of the
commencement thereof, such indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel 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, such indemnifying party shall not be liable
to such indemnified party for any legal expenses of other counsel or
any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without
the written
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consent of the indemnified party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any
pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not
the indemnified party is an actual or potential party to such action or
claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability
arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to
act by or on behalf of any indemnified party.
(d) Contribution. If for any reason the indemnification
provisions contemplated by Section 6(a) or Section 6(b) are unavailable
to or insufficient to hold harmless an indemnified party in respect of
any losses, claims, damages or liabilities (or actions in respect
thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in
respect thereof) in such proportion as is appropriate to reflect the
relative fault of the indemnifying party and the indemnified party in
connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof),
as well as any other relevant equitable considerations. The relative
fault of such indemnifying party and indemnified party shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by
such indemnifying party or by such indemnified party, and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The parties hereto agree
that it would not be just and equitable if contributions pursuant to
this Section 6(d) were determined by pro rata allocation (even if the
holders or any agents or underwriters or all of them were treated as
one entity for such purpose) or by any other method of allocation which
does not take account of the equitable considerations referred to in
this Section 6(d). The amount paid or payable by an indemnified party
as a result of the losses, claims, damages, or liabilities (or actions
in respect thereof) referred to above shall be deemed to include any
legal or other fees or expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Section 6(d), no holder
shall be required to contribute any amount in excess of the amount by
which the dollar amount of the proceeds received by such holder from
the sale of any Transfer Restricted Securities (after deducting any
fees, discounts and commissions applicable thereto) exceeds the amount
of any damages which such holder has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or
alleged omission, and no underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which
the Transfer Restricted Securities underwritten by it and distributed
to the public were offered to the public exceeds the amount of any
damages which such underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent
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misrepresentation. The holders' and any underwriters' obligations in
this Section 6(d) to contribute shall be several in proportion to the
principal amount of Transfer Restricted Securities registered or
underwritten, as the case may be, by them and not joint.
(e) The obligations of the Company and the Guarantors
under this Section 6 shall be in addition to any liability which the
Company or the Guarantors may otherwise have and shall extend, upon the
same terms and conditions, to each officer, director and partner of
each holder, agent and underwriter and each person, if any, who
controls any holder, agent or underwriter within the meaning of the
Securities Act; and the obligations of the holders and any agents or
underwriters contemplated by this Section 6 shall be in addition to any
liability which the respective holder, agent or underwriter may
otherwise have and shall extend, upon the same terms and conditions, to
each officer and director of the Company and the Guarantors (including
any person who, with his consent, is named in any registration
statement as about to become a director of the Company or the
Guarantors) and to each person, if any, who controls the Company or the
Guarantors within the meaning of the Securities Act.
7. Underwritten Offerings.
(a) Selection of Underwriters. If any of the Transfer
Restricted Securities covered by the Shelf Registration are to be sold
pursuant to an underwritten offering, the managing underwriter or
underwriters thereof shall be designated by Electing Holders holding at
least a majority in aggregate principal amount of the Transfer
Restricted Securities to be included in such offering, provided that
such designated managing underwriter or underwriters is or are
reasonably acceptable to the Company.
(b) Participation by Holders. Each holder of Transfer
Restricted Securities hereby agrees with each other such holder that no
such holder may participate in any underwritten offering hereunder
unless such holder (i) agrees to sell such holder's Transfer Restricted
Securities on the basis provided in any underwriting arrangements
approved by the persons entitled hereunder to approve such arrangements
and (ii) completes and executes all questionnaires, powers of attorney,
indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
8. Rule 144.
The Company and the Guarantors covenant to the holders of Transfer
Restricted Securities that, to the extent they shall be required to do so under
the Exchange Act, the Company and the Guarantors shall timely file the reports
required to be filed by it under the Exchange Act or the Securities Act
(including the reports under Section 13 and 15(d) of the Exchange Act referred
to in subparagraph (c)(1) of Rule 144 adopted by the Commission under the
Securities Act) and the rules and regulations adopted by the Commission
thereunder, and shall take such further action as any holder of Transfer
Restricted Securities may reasonably request, all to the extent required from
time to time to enable such holder to sell Transfer
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Restricted Securities without registration under the Securities Act within the
limitations of the exemption provided by Rule 144 under the Securities Act, as
such Rule may be amended from time to time, or any similar or successor rule or
regulation hereafter adopted by the Commission. Upon the request of any holder
of Transfer Restricted Securities in connection with that holder's sale pursuant
to Rule 144, the Company and the Guarantors shall deliver to such holder a
written statement as to whether it has complied with such requirements.
9. Miscellaneous.
(a) No Inconsistent Agreements. The Company and the
Guarantors represent, warrant, covenant and agree that they have not
granted, and shall not grant, registration rights with respect to
Transfer Restricted Securities or any other securities which would be
inconsistent with the terms contained in this Exchange and Registration
Rights Agreement.
(b) Specific Performance. The parties hereto acknowledge
that there would be no adequate remedy at law if the Company or any
Subsidiary Guarantor fails to perform any of their obligations
hereunder and that the Purchasers and the holders from time to time of
the Transfer Restricted Securities may be irreparably harmed by any
such failure, and accordingly agree that the Purchasers and such
holders, in addition to any other remedy to which they may be entitled
at law or in equity, shall be entitled to compel specific performance
of the respective obligations of the Company or such Guarantor under
this Exchange and Registration Rights Agreement in accordance with the
terms and conditions of this Exchange and Registration Rights
Agreement, in any court of the United States or any State thereof
having jurisdiction.
(c) Notices. All notices, requests, claims, demands,
waivers and other communications hereunder shall be in writing and
shall be deemed to have been duly given when delivered by hand, if
delivered personally or by courier, or three days after being deposited
in the mail (registered or certified mail, postage prepaid, return
receipt requested) as follows: If to the Company and the Guarantors, to
the attention of the Company and the Guarantors at 2700 North First
Street, San Jose, California, 95134, and if to a holder, to the address
of such holder set forth in the security register or other records of
the Company, or to such other address as the Company or any such holder
may have furnished to the other in writing in accordance herewith,
except that notices of change of address shall be effective only upon
receipt.
(d) Parties in Interest. All the terms and provisions of
this Exchange and Registration Rights Agreement shall be binding upon,
shall inure to the benefit of and shall be enforceable by the parties
hereto and the holders from time to time of the Transfer Restricted
Securities and the respective successors and assigns of the parties
hereto and such holders. In the event that any transferee of any holder
of Transfer Restricted Securities shall acquire Transfer Restricted
Securities, in any manner, whether by gift, bequest, purchase,
operation of law or otherwise, such transferee shall, without any
further writing or action of any kind, be deemed a beneficiary hereof
for all purposes
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and such Transfer Restricted Securities shall be held subject to all of
the terms of this Exchange and Registration Rights Agreement, and by
taking and holding such Transfer Restricted Securities such transferee
shall be entitled to receive the benefits of, and be conclusively
deemed to have agreed to be bound by all of the applicable terms and
provisions of this Exchange and Registration Rights Agreement. If the
Company shall so request, any such successor, assign or transferee
shall agree in writing to acquire and hold the Transfer Restricted
Securities subject to all of the applicable terms hereof.
(e) Survival. The respective indemnities, agreements,
representations, warranties and each other provision set forth in this
Exchange and Registration Rights Agreement or made pursuant hereto
shall remain in full force and effect regardless of any investigation
(or statement as to the results thereof) made by or on behalf of any
holder of Transfer Restricted Securities, any director, officer or
partner of such holder, any agent or underwriter or any director,
officer or partner thereof, or any controlling person of any of the
foregoing, and shall survive delivery of and payment for the Transfer
Restricted Securities pursuant to the Purchase Agreement and the
transfer and registration of Transfer Restricted Securities by such
holder and the consummation of an Exchange Offer.
(F) GOVERNING LAW. THIS EXCHANGE AND REGISTRATION RIGHTS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
(g) Headings. The descriptive headings of the several
Sections and paragraphs of this Exchange and Registration Rights
Agreement are inserted for convenience only, do not constitute a part
of this Exchange and Registration Rights Agreement and shall not affect
in any way the meaning or interpretation of this Exchange and
Registration Rights Agreement.
(h) Entire Agreement; Amendments. This Exchange and
Registration Rights Agreement and the other writings referred to herein
(including the Indenture and the form of Securities) or delivered
pursuant hereto which form a part hereof contain the entire
understanding of the parties with respect to its subject matter. This
Exchange and Registration Rights Agreement supersedes all prior
agreements and understandings between the parties with respect to its
subject matter. This Exchange and Registration Rights Agreement may be
amended and the observance of any term of this Exchange and
Registration Rights Agreement may be waived (either generally or in a
particular instance and either retroactively or prospectively) only by
a written instrument duly executed by the Company and the holders of at
least a majority in aggregate principal amount of the Transfer
Restricted Securities at the time outstanding. Each holder of any
Transfer Restricted Securities at the time or thereafter outstanding
shall be bound by any amendment or waiver effected pursuant to this
Section 9(h), whether or not any notice, writing or marking indicating
such amendment or waiver appears on such Transfer Restricted Securities
or is delivered to such holder.
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(i) Inspection. For so long as this Exchange and
Registration Rights Agreement shall be in effect, this Exchange and
Registration Rights Agreement and a complete list of the names and
addresses of all the holders of Transfer Restricted Securities shall be
made available for inspection and copying on any business day by any
holder of Transfer Restricted Securities for proper purposes only
(which shall include any purpose related to the rights of the holders
of Transfer Restricted Securities under the Securities, the Indenture
and this Agreement) at the offices of the Company at the address
thereof set forth in Section 9(c) above and at the office of the
Trustee under the Indenture.
(j) Counterparts. This agreement may be executed by the
parties in counterparts, each of which shall be deemed to be an
original, but all such respective counterparts shall together
constitute one and the same instrument.
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If the foregoing is in accordance with your understanding,
please sign and return to us five counterparts hereof, and upon the acceptance
hereof by you, on behalf of each of the Purchasers, this letter and such
acceptance hereof shall constitute a binding agreement among each of the
Purchasers, the Company and the Guarantors. It is understood that your
acceptance of this letter on behalf of each of the Purchasers is pursuant to the
authority set forth in a form of Agreement among Purchasers, the form of which
shall be submitted to the Company for examination upon request, but without
warranty on your part as to the authority of the signers thereof.
Very truly yours,
THE COMPANY
SANMINA-SCI CORPORATION
By: /s/ Rick R. Ackel
____________________________________
Name: Rick R. Ackel
Title: Executive Vice President
and Chief Financial Officer
By: /s/ Walter Boileau
____________________________________
Name: Walter Boileau
Title: Treasurer
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GUARANTORS
COMPATIBLE MEMORY, INC.
ESSEX ACQUISITION SUBSIDIARY, INC.
HADCO CORPORATION
HADCO SANTA CLARA, INC.
INTERAGENCY, INC.
INTERWORKS COMPUTER PRODUCTS
MANU-TRONICS, INC.
MOOSE ACQUISITION SUBSIDIARY, INC.
SANMINA CANADA HOLDINGS, INC.
SANMINA ENCLOSURE SYSTEMS USA INC.
SANMINA-SCI SYSTEMS (ALABAMA) INC.
SANMINA-SCI SYSTEMS ENCLOSURES, LLC
SCI ENCLOSURES (DENTON), INC.
SCI HOLDINGS, INC.
SCI SYSTEMS, INC.
SCI TECHNOLOGY, INC.
SCIMEX, INC.
VIKING COMPONENTS INCORPORATED
All by: /s/ Rick R. Ackel
____________________________________
Name: Rick R. Ackel
Title: Chief Financial Officer
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GUARANTORS
SCI PLANT NO. 2, L.L.C.
SCI PLANT NO. 3, L.L.C.
SCI PLANT NO. 4, L.L.C.
SCI PLANT NO. 5, L.L.C.
SCI PLANT NO. 27, L.L.C.
SCI PLANT NO. 30, L.L.C.
All by:
SANMINA-SCI SYSTEMS (ALABAMA) INC.,
their Sole Member
/s/ Rick R. Ackel
___________________________________________
Name: Rick R. Ackel
Title: Chief Financial Officer
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GUARANTORS
SCI PLANT NO. 12, L.L.C.
SCI PLANT NO. 22, L.L.C.
All by:
SCI TECHNOLOGY, INC.,
their Sole Member
/s/ Rick R. Ackel
___________________________________________
Name: Rick R. Ackel
Title: Chief Financial Officer
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GUARANTORS
SANMINA GENERAL, L.L.C.
SANMINA LIMITED, L.L.C.
SANMINA-SCI, LLC
All by:
SANMINA-SCI CORPORATION,
their Sole Member
/s/ Rick R. Ackel
___________________________________________
Name: Rick R. Ackel
Title: Executive Vice President and Chief
Financial Officer
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GUARANTORS
SANMINA TEXAS, L.P.
By: SANMINA GENERAL, L.L.C.,
its General Partner
By: SANMINA-SCI CORPORATION,
its Sole Member
/s/ Rick R. Ackel
_______________________________________
Name: Rick R. Ackel
Title: Executive Vice President and
Chief Financial Officer
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Accepted as of the date hereof:
GOLDMAN, SACHS & Co.
BANC OF AMERICA SECURITIES LLC
SALOMON SMITH BARNEY, INC.
MORGAN STANLEY & Co. Incorporated
SCOTIA CAPITAL (USA), INC.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
RBC DOMINION SECURITIES CORPORATION
By: /s/ Goldman, Sachs & Co.
_______________________________
(Goldman, Sachs & Co.)
On behalf of each of the Purchasers
37
EXHIBIT A
SANMINA - SCI CORPORATION
INSTRUCTION TO DTC PARTICIPANTS
(Date of Mailing)
URGENT - IMMEDIATE ATTENTION REQUESTED
DEADLINE FOR RESPONSE: [DATE]
The Depository Trust Company ("DTC") has identified you as a DTC Participant
through which beneficial interests in the Sanmina-SCI Corporation (the
"Company") 10.375% Senior Secured Notes due January 15, 2010 (the "Securities")
are held.
The Company is in the process of registering the Securities under the Securities
Act of 1933 for resale by the beneficial owners thereof. In order to have their
Securities included in the registration statement, beneficial owners must
complete and return the enclosed Notice of Registration Statement and Selling
Securityholder Questionnaire.
It is important that beneficial owners of the Securities receive a copy of the
enclosed materials as soon as possible as their rights to have the Securities
included in the registration statement depend upon their returning the Notice
and Questionnaire by [Deadline For Response]. Please forward a copy of the
enclosed documents to each beneficial owner that holds interests in the
Securities through you. If you require more copies of the enclosed materials or
have any questions pertaining to this matter, please contact Sanmina-SCI
Corporation, 2700 North First Street, San Jose, California, 95134, telephone:
(408) 965-3500.
SANMINA-SCI CORPORATION
NOTICE OF REGISTRATION STATEMENT
AND
SELLING SECURITYHOLDER QUESTIONNAIRE
(DATE)
Reference is hereby made to the Exchange and Registration Rights Agreement (the
"Exchange and Registration Rights Agreement") between Sanmina-SCI Corporation
(the "Company"), the Guarantors (as defined therein) and the Purchasers named
therein. Pursuant to the Exchange and Registration Rights Agreement, the Company
has filed with the United States Securities and Exchange Commission (the
"Commission") a registration statement on Form [__] (the "Shelf Registration
Statement") for the registration and resale under Rule 415 of the Securities Act
of 1933, as amended (the "Securities Act"), of the Company's 10.375% Senior
Secured Notes due January 15, 2010 as fully and unconditionally guaranteed by
the Guarantors (the "Securities"). A copy of the Exchange and Registration
Rights Agreement is attached hereto. All capitalized terms not otherwise defined
herein shall have the meanings ascribed thereto in the Exchange and Registration
Rights Agreement.
Each beneficial owner of Transfer Restricted Securities (as defined below) is
entitled to have the Transfer Restricted Securities beneficially owned by it
included in the Shelf Registration Statement. In order to have Transfer
Restricted Securities included in the Shelf Registration Statement, this Notice
of Registration Statement and Selling Securityholder Questionnaire ("Notice and
Questionnaire") must be completed, executed and delivered to the Company's
counsel at the address set forth herein for receipt ON OR BEFORE [Deadline for
Response]. Beneficial owners of Transfer Restricted Securities who do not
complete, execute and return this Notice and Questionnaire by such date (i) will
not be named as selling securityholders in the Shelf Registration Statement and
(ii) may not use the Prospectus forming a part thereof for resales of Transfer
Restricted Securities.
Certain legal consequences arise from being named as a selling securityholder in
the Shelf Registration Statement and related Prospectus. Accordingly, holders
and beneficial owners of Registrable Securities are advised to consult their own
securities law counsel regarding the consequences of being named or not being
named as a selling securityholder in the Shelf Registration Statement and
related Prospectus.
The term "Transfer Restricted Securities" is defined in the Exchange and
Registration Rights Agreement.
ELECTION
The undersigned holder (the "Selling Securityholder") of Transfer Restricted
Securities hereby elects to include in the Shelf Registration Statement the
Transfer Restricted Securities beneficially owned by it and listed below in Item
(3). The undersigned, by signing and returning this Notice and Questionnaire,
agrees to be bound with respect to such Transfer Restricted Securities by the
terms and conditions of this Notice and Questionnaire and the Exchange and
Registration Rights Agreement, including, without limitation, Section 6 of the
Exchange and Registration Rights Agreement, as if the undersigned Selling
Securityholder were an original party thereto.
Upon any sale of Transfer Restricted Securities pursuant to the Shelf
Registration Statement, the Selling Securityholder will be required to deliver
to the Company and Trustee the Notice of Transfer set forth in Appendix A to the
Prospectus and as Exhibit B to the Exchange and Registration Rights Agreement.
The Selling Securityholder hereby provides the following information to the
Company and represents and warrants that such information is accurate and
complete:
QUESTIONNAIRE
(1) (a) Full Legal Name of Selling Securityholder:
(b) Full Legal Name of Registered Holder (if not the same as in (a) above)
of Transfer Restricted Securities Listed in Item (3) below:
(c) Full Legal Name of DTC Participant (if applicable and if not the same
as (b) above) Through Which Transfer Restricted Securities Listed in
Item (3) below are Held:
(2) Address for Notices to Selling Securityholder:
Telephone: ___________________________________
Fax: ___________________________________
Contact Person: ___________________________________
(3) Beneficial Ownership of Securities:
Except as set forth below in this Item (3), the undersigned does not
beneficially own any Securities.
(a) Principal amount of Transfer Restricted Securities beneficially
owned:_________________________________________________________________
CUSIP No(s). of such Transfer Restricted Securities:___________________
(b) Principal amount of Securities other than Transfer Restricted
Securities beneficially owned:_________________________________________
CUSIP No(s). of such other Securities:_________________________________
(c) Principal amount of Transfer Restricted Securities which the
undersigned wishes to be included in the Shelf Registration
Statement:_____________________________________________________________
CUSIP No(s). of such Transfer Restricted Securities to be included in
the Shelf Registration Statement:______________________________________
(4) Beneficial Ownership of Other Securities of the Company:_______________
Except as set forth below in this Item (4), the undersigned Selling
Securityholder is not the beneficial or registered owner of any other
securities of the Company, other than the Securities listed above in
Item (3).
State any exceptions here:
(5) Relationships with the Company:
Except as set forth below, neither the Selling Securityholder nor any
of its affiliates, officers, directors or principal equity holders (5%
or more) has held any position or office or has had any other material
relationship with the Company (or its predecessors or affiliates)
during the past three years.
State any exceptions here:
(6) Plan of Distribution:
Except as set forth below, the undersigned Selling Securityholder
intends to distribute the Transfer Restricted Securities listed above
in Item (3) only as follows (if at all): Such Transfer Restricted
Securities may be sold from time to time directly by the undersigned
Selling Securityholder or, alternatively, through underwriters,
broker-dealers or agents. Such Transfer Restricted Securities may be
sold in one or more transactions at fixed prices, at prevailing market
prices at the time of sale, at varying prices determined at the time of
sale, or at negotiated prices. Such sales may be effected in
transactions (which may involve crosses or block transactions) (i) on
any national securities exchange or quotation service on which the
Securities may be listed or quoted at the time of sale, (ii) in the
over-the-counter market, (iii) in transactions otherwise than on such
exchanges or services or in the over-the-counter market, or (iv)
through the writing of options. In connection with sales of the
Transfer Restricted Securities or otherwise, the Selling Securityholder
may enter into hedging transactions with broker-dealers, which may in
turn engage in short sales of the Transfer Restricted Securities in the
course of hedging the positions they assume. The Selling Securityholder
may also sell Transfer Restricted Securities short and deliver Transfer
Restricted Securities to close out such short positions, or loan or
pledge Registrable Securities to broker-dealers that in turn may sell
such securities.
State any exceptions here:
By signing below, the Selling Securityholder acknowledges that it understands
its obligation to comply, and agrees that it will comply, with the provisions of
the Exchange Act and the rules and regulations thereunder, particularly
Regulation M.
In the event that the Selling Securityholder transfers all or any portion of the
Transfer Restricted Securities listed in Item (3) above after the date on which
such information is provided to the Company, the Selling Securityholder agrees
to notify the transferee(s) at the time of the transfer of its rights and
obligations under this Notice and Questionnaire and the Exchange and
Registration Rights Agreement.
By signing below, the Selling Securityholder consents to the disclosure of the
information contained herein in its answers to Items (1) through (6) above and
the inclusion of such information in the Shelf Registration Statement and
related Prospectus. The Selling Securityholder understands that such information
will be relied upon by the Company in connection with the preparation of the
Shelf Registration Statement and related Prospectus.
In accordance with the Selling Securityholder's obligation under Section 3(d)
and Section 3(f) of the Exchange and Registration Rights Agreement to provide
such information as may be required by law for inclusion in the Shelf
Registration Statement, the Selling Securityholder agrees to promptly notify the
Company of any inaccuracies or changes in the information provided herein which
may occur subsequent to the date hereof at any time while the Shelf Registration
Statement remains in effect. All notices hereunder and pursuant to the Exchange
and Registration Rights Agreement shall be made in writing, by hand-delivery,
first-class mail, or air courier guaranteeing overnight delivery as follows:
(i) To the Company:
Sanmina-SCI Corporation
2700 North First Street
San Jose, California 95134
Attention: Secretary
Tel: (408) 965-3500
(ii) With a copy to:
Wilson Sonsini Goodrich & Rosati,
Professional Corporation
650 Page Mill Road
Palo Alto, California 94304-1050
Attention: Christopher D. Mitchell
Tel: (650) 493-9300
Once this Notice and Questionnaire is executed by the Selling Securityholder and
received by the Company's counsel, the terms of this Notice and Questionnaire,
and the representations and warranties contained herein, shall be binding on,
shall inure to the benefit of and shall be enforceable by the respective
successors, heirs, personal representatives, and assigns of the Company and the
Selling Securityholder (with respect to the Transfer Restricted Securities
beneficially owned by such Selling Securityholder and listed in Item (3) above.
This Agreement shall be governed in all respects by the laws of the State of New
York.
IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused this
Notice and Questionnaire to be executed and delivered either in person or by its
duly authorized agent.
Dated:_____________
Selling Securityholder
(Print/type full legal name of beneficial owner of Transfer
Restricted Securities)
By:___________________________________________________________
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON
OR BEFORE [DEADLINE FOR RESPONSE] TO THE COMPANY'S COUNSEL AT:
Wilson Sonsini Goodrich & Rosati,
Professional Corporation
650 Page Mill Road
Palo Alto, California 94304-1050
Attention: Christopher D. Mitchell
Tel:(650) 493-9300
EXHIBIT B
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
State Street Bank and Trust Company
of California, N.A.
Sanmina-SCI Corporation
c/o State Street Bank and Trust Company
of California, N.A.
633 West 5th Street, 12th Floor
Los Angeles, California 90071
Attention: Trust Officer
Re: Sanmina-SCI Corporation (the "Company")
10.375% Senior Secured Notes due January 15, 2010
Dear Sirs:
Please be advised that _________________________ has transferred
$____________________ aggregate principal amount of the above-referenced Notes
pursuant to an effective Registration Statement on Form [__] (File No. 333- )
filed by the Company.
We hereby certify that the prospectus delivery requirements, if any, of the
Securities Act of 1933, as amended, have been satisfied and that the above-named
beneficial owner of the Notes is named as a "Selling Holder" in the Prospectus
dated _________, 200_ or in supplements thereto, and that the aggregate
principal amount of the Notes transferred are the Notes listed in such
Prospectus opposite such owner's name.
Dated: ____________, 200_
Very truly yours,
____________________________________
(Name)
By:_________________________________
(Authorized Signature)