EXHIBIT 10.45
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
BETWEEN
LSI LOGIC CORPORATION
AND
MORGAN STANLEY & CO. INCORPORATED
DATED AS OF MAY 16, 2003
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REGISTRATION RIGHTS AGREEMENT, dated as of May 16, 2003,
between LSI Logic Corporation, a Delaware corporation (together with any
successor entity, herein referred to as the "COMPANY"), and Morgan Stanley & Co.
Incorporated, as initial purchaser (the "INITIAL PURCHASER") under the Purchase
Agreement (as defined below).
Pursuant to the Purchase Agreement, dated as of May 12, 2003,
between the Company and the Initial Purchaser (the "PURCHASE AGREEMENT"), the
Initial Purchaser has agreed to purchase from the Company $350,000,000
($402,500,000 if the Initial Purchaser exercises its option in full) in
aggregate principal amount of 4% Convertible Subordinated Notes due 2010 (the
"SECURITIES"). The Securities initially may be convertible into fully paid,
nonassessable shares of common stock, par value $0.01 per share, of the Company
on the terms, and subject to the conditions, set forth in the Indenture (as
defined herein). To induce the Initial Purchaser to purchase the Securities, the
Company has agreed to provide the registration rights set forth in this
Agreement pursuant to Section 1 of the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions. As used in this Agreement, the following
capitalized terms shall have the following meanings:
"ADDITIONAL INTEREST": As defined in Section 3(a) hereof.
"ADDITIONAL INTEREST PAYMENT DATE": Each May 15 and November
15.
"AFFILIATE": The definition of "Affiliate" in the Indenture.
"AGREEMENT": This Registration Rights Agreement, as amended,
modified or otherwise supplemented from time to time.
"BLUE SKY APPLICATION": As defined in Section 6(a) hereof.
"BUSINESS DAY": The definition of "Business Day" in the
Indenture.
"COMMISSION": Securities and Exchange Commission.
"COMMON STOCK": The definition of "Common Stock" in the
Indenture.
"COMPANY": As defined in the preamble hereto.
"EFFECTIVENESS PERIOD": As defined in Section 2(a)(iii)
hereof.
"EFFECTIVENESS TARGET DATE": As defined in Section 2(a)(ii)
hereof.
"EXCHANGE ACT": Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
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"HOLDER": A Person who owns, beneficially or otherwise,
Transfer Restricted Securities.
"HOLDER QUESTIONNAIRE": As defined in Section 2(b) hereof.
"INDEMNIFIED HOLDER": As defined in Section 6(a) hereof.
"INDENTURE": The Indenture, dated as of May 16, 2003 between
the Company and U.S. Bank National Association, as trustee (the
"TRUSTEE"), pursuant to which the Securities are to be issued, as such
Indenture is amended, modified or supplemented from time to time in
accordance with the terms thereof.
"INITIAL PURCHASER": As defined in the preamble hereto.
"MAJORITY OF HOLDERS": Holders holding over 50% of the
aggregate principal amount of Transfer Restricted Securities
outstanding; provided, however that in determining whether Transfer
Restricted Securities are outstanding, Transfer Restricted Securities
held for the account of the Company or of any of its Affiliates shall
be disregarded; provided, further that for purpose of this definition,
a holder of shares of Common Stock that constitute Transfer Restricted
Securities when issued upon conversion of the Securities shall be
deemed to hold an aggregate principal amount of Securities (in addition
to the principal amount of Securities held by such holder) equal to the
quotient of (x) the number of such shares of Common Stock received upon
conversion of the Securities and then held by such holder and (y) the
conversion rate(s) in effect at the time such Holder converted
Securities into such shares of Common Stock as determined in accordance
with the Indenture.
"NASD": National Association of Securities Dealers, Inc.
"PERSON": An individual, partnership, corporation, company,
unincorporated organization, trust, joint venture or a government or
agency or political subdivision thereof.
"PURCHASE AGREEMENT": As defined in the preamble hereto.
"PROSPECTUS": The prospectus included in a Shelf Registration
Statement, as amended or supplemented by any prospectus supplement and
by all other amendments thereto, including post-effective amendments,
and all material incorporated by reference into such Prospectus.
"QUESTIONNAIRE DEADLINE": As defined in Section 2(b) hereof.
"RECORD HOLDER": With respect to any Additional Interest
Payment Date, each Person who is a Holder on the Register on the May 1
or November 1 immediately preceding the relevant Additional Interest
Payment Date. In the case of a Holder of shares of Common Stock issued
upon conversion of the Securities, "Record Holder" shall mean each
Person who is a Holder of shares of Common Stock which constitute
Transfer
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Restricted Securities on the May 1 or November 1 immediately preceding
the relevant Additional Interest Payment Date.
"REGISTER": The definition of "Register" in the Indenture.
"REGISTRAR": The definition of "Registrar" in the Indenture.
"REGISTRATION DEFAULT": As defined in Section 3(a) hereof.
"SALE NOTICE": As defined in Section 4(e) hereof.
"SECURITIES": As defined in the preamble hereto; provided,
however, that for the purpose of Section 2(b) and Section 4(d) hereof,
this definition shall include the shares of Common Stock issuable upon
conversion of the 4% Convertible Subordinated Notes due 2010.
"SECURITIES ACT": Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"SHELF FILING DEADLINE": As defined in Section 2(a)(i) hereof.
"SHELF REGISTRATION STATEMENT": As defined in Section 2(a)(i)
hereof.
"SUSPENSION NOTICE". As defined in Section 4(c) hereof.
"SUSPENSION PERIOD". As defined in Section 4(b)(i) hereof.
"TIA": Trust Indenture Act of 1939, as amended, the rules and
regulations of the Commission thereunder, in each case, as in effect on
the date the Indenture is qualified under the TIA.
"TRANSFER RESTRICTED SECURITIES": Each Security and each share
of Common Stock issued upon conversion of Securities for which a holder
has submitted a properly completed Holder Questionnaire by the
Questionnaire Deadline, or for which a holder has otherwise submitted a
properly completed Holder Questionnaire and been named in the Shelf
Registration Statement pursuant to Section 2(b) hereof, until the
earliest of:
(i) the date on which such Security or such
share of Common Stock issued upon conversion thereof has been
effectively registered under the Securities Act and disposed
of in accordance with the Shelf Registration Statement;
(ii) the date on which such Security or such
share of Common Stock issued upon conversion thereof is
transferred in compliance with Rule 144 under the Securities
Act or may be sold or transferred by a person who is not an
affiliate of the Company pursuant to Rule 144 under the
Securities Act (or any other similar provision then in force)
without any volume or manner of sale restrictions thereunder;
or
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(iii) the date on which such Security or such
share of Common Stock issued upon conversion ceases to be
outstanding (whether as a result of repurchase, cancellation,
conversion or otherwise).
UNDERWRITTEN REGISTRATION OR UNDERWRITTEN OFFERING: A
registration in which Transfer Restricted Securities are sold to an
underwriter for reoffering to the public pursuant to the Shelf
Registration Statement.
Unless the context otherwise requires, the singular includes
the plural, and words in the plural include the singular.
2. Shelf Registration
(a) The Company shall:
(i) not later than 90 days after the date hereof
(the "SHELF FILING DEADLINE"), cause to be filed a
registration statement pursuant to Rule 415 under the
Securities Act (the "SHELF REGISTRATION STATEMENT"), which
Shelf Registration Statement shall provide for resales of all
Transfer Restricted Securities held by Holders that have
provided the information required pursuant to the terms of
Section 2(b) hereof;
(ii) use its reasonable efforts to cause the
Shelf Registration Statement to be declared effective by the
Commission not later than 180 days after the date hereof (the
"EFFECTIVENESS TARGET DATE"); and
(iii) use its reasonable efforts to keep the Shelf
Registration Statement continuously effective, supplemented
and amended as required by the provisions of Section 4(b)
hereof (and subject to the right of the Company to suspend the
use of the Shelf Registration Statement by delivery of a
Suspension Notice in accordance with Section 4(b)(i) hereof)
to the extent necessary to ensure that (A) it is available for
resales by the Holders of Transfer Restricted Securities
entitled, subject to Section 2(b), to the benefit of this
Agreement and (B) it conforms with the requirements of this
Agreement and the Securities Act, for a period (the
"EFFECTIVENESS PERIOD") until the earliest of:
(1) two years following the last
date of original issuance of any of the
Securities; or
(2) the date when the Holders of
Transfer Restricted Securities are able to
sell all such Transfer Restricted Securities
immediately without restriction pursuant to
the volume limitation provisions of Rule 144
under the Securities Act; and
(3) the date when all of the
Transfer Restricted Securities of those
Holders that complete and deliver in a
timely manner the Holder Questionnaire
described below are registered
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under the Shelf Registration Statement and
disposed of in accordance with the Shelf
Registration Statement.
(b) No holder of Securities may include any of its
Securities in the Shelf Registration Statement pursuant to this Agreement unless
such holder furnishes to the Company in writing, prior to or on the 20th
Business Day after the date of the Holder Questionnaire (or, in the case of a
holder that is a transferee of Transfer Restricted Securities, prior to or on
the earlier of (i) the 20th business day after the completion of such transfer
to the transferee and (ii) 9:00 a.m., San Francisco time, on the second Business
Day before the effectiveness of the Shelf Registration Statement) (the
"QUESTIONNAIRE DEADLINE"), such information as the Company may reasonably
request for use in connection with the Shelf Registration Statement or
Prospectus or preliminary Prospectus included therein and in any application to
be filed with or under state securities laws (the form of which request is
attached as Annex A to the offering memorandum dated May 12, 2003 regarding the
sale of the Securities to the Initial Purchaser and is referred to herein as the
"HOLDER QUESTIONNAIRE"). In connection with all requests for information from
holders of Securities with respect to inclusion of Securities in the Shelf
Registration Statement prior to the Questionnaire Deadline, the Company shall
notify such holders of the requirements set forth in the preceding sentence. The
Company agrees and undertakes that (i) it shall distribute a Holder
Questionnaire no later than 20 Business Days prior to the effectiveness of the
Shelf Registration Statement to each holder of Securities at the address set
forth on the Register of Securities maintained by the Registrar of the
Securities or the records of the transfer agent of the Common Stock at such
time, and (ii) upon the request of any holder of Securities prior to 9:00 a.m.,
San Francisco time, on the second Business Day before the effectiveness of the
Shelf Registration Statement, the Company shall distribute a Holder
Questionnaire to such holder at the address set forth in such request. Holders
of Securities that do not complete the Holder Questionnaire and timely deliver
it to the Company shall not be named as selling securityholders in the
Prospectus or preliminary Prospectus included in the Shelf Registration
Statement and therefore shall not be permitted to sell any Transfer Restricted
Securities pursuant to the Shelf Registration Statement. Notwithstanding the
foregoing, upon request from any holder of Securities that did not return a
Holder Questionnaire on a timely basis, (i) the Company shall distribute a
Holder Questionnaire to such holder of Securities at the address set forth in
the request and (ii) upon receipt of a properly completed Holder Questionnaire
from such holder of Securities, the Company shall use its reasonable efforts to
name such holder as a selling securityholder by means of a pre-effective
amendment or, if permitted by the Commission, by means of a Prospectus
supplement to the Shelf Registration Statement; provided, however, that the
Company shall have no obligation to pay Additional Interest to such holder for
its failure to file a pre-effective amendment or Prospectus supplement. Each
Holder as to which the Shelf Registration Statement is being effected agrees to
furnish promptly to the Company all information required to be disclosed in
order to make information previously furnished to the Company by such Holder not
materially misleading.
NO HOLDER OF TRANSFER RESTRICTED SECURITIES SHALL BE ENTITLED TO
ADDITIONAL INTEREST PURSUANT TO SECTION 3 HEREOF UNLESS SUCH HOLDER SHALL HAVE
PROVIDED ALL SUCH REASONABLY REQUESTED INFORMATION PRIOR TO OR ON THE
QUESTIONNAIRE DEADLINE.
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3. Additional Interest.
(a) If:
(i) the Shelf Registration Statement is not
filed with the Commission prior to or on the Shelf Filing
Deadline;
(ii) the Shelf Registration Statement has not
been declared effective by the Commission prior to or on the
Effectiveness Target Date;
(iii) except as provided in Section 4(b)(i)
hereof, the Shelf Registration Statement is filed and declared
effective but, during the Effectiveness Period, shall
thereafter cease to be effective or fail to be usable for its
intended purpose without being succeeded within five Business
Days by a post-effective amendment to the Shelf Registration
Statement, a supplement to the Prospectus or a report filed
with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act that cures such failure and, in the
case of a post-effective amendment, is itself immediately
declared effective; or
(iv) (A) prior to or on the 45th or 60th day, as
the case may be, of any Suspension Period, such suspension has
not been terminated or (B) Suspension Periods exceed an
aggregate of 90 days in any 360 day period,
(each such event referred to in foregoing clauses (i) through (iv), a
"REGISTRATION DEFAULT"), the Company hereby agrees to pay liquidated damages in
the form of additional interest ("ADDITIONAL INTEREST") with respect to the
Transfer Restricted Securities from and including the day following the
Registration Default to but excluding the earlier of (1) the day on which the
Registration Default has been cured and (2) the date the Shelf Registration
Statement is no longer required to be kept effective, accruing at a rate:
(A) in respect of the Securities, to each holder
of Securities, (x) with respect to the first 90-day period
during which a Registration Default shall have occurred and be
continuing, equal to 0.25% per annum of the principal amount
of the Securities, and (y) with respect to the period
commencing on the 91st day following the day the Registration
Default shall have occurred and be continuing, equal to 0.50%
per annum of the principal amount of the Securities; provided
that in no event shall Additional Interest accrue at a rate
per year exceeding 0.50% of the principal amount of the
Securities; and
(B) in respect of any shares of Common Stock, to
each holder of shares of Common Stock issued upon conversion
of Securities, (x) with respect to the first 90-day period in
which a Registration Default shall have occurred and be
continuing, equal to 0.25% per annum of the principal amount
of the converted Securities, and (y) with respect to the
period commencing the 91st day following the day the
Registration Default shall have occurred and be continuing,
equal to 0.50% per annum of the principal amount of the
converted Securities; provided that in no event shall
Additional Interest accrue at a rate per year exceeding 0.50%
of the principal amount of the converted Securities.
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(b) All accrued Additional Interest shall be paid in
arrears to Record Holders by the Company on each Additional Interest Payment
Date in the same manner as the payment of interest on the Securities. Upon the
cure of all Registration Defaults relating to any particular Security or share
of Common Stock, the accrual of Additional Interest with respect to such
Security or share of Common Stock will cease. The Company agrees to deliver all
notices, certificates and other documents contemplated by the Indenture in
connection with the payment of Additional Interest.
Notwithstanding any other provision of this Agreement, no
Additional Interest shall accrue as to any Transfer Restricted Security from and
after the earlier of the date such security is no longer a Transfer Restricted
Security and the expiration of the Effectiveness Period. All obligations of the
Company set forth in this Section 3 that are outstanding with respect to any
Transfer Restricted Security at the time such security ceases to be a Transfer
Restricted Security shall survive until such time as all such obligations with
respect to such Transfer Restricted Security shall have been satisfied in full.
The parties hereto agree that the Holders of Transfer
Restricted Securities will suffer damages, and that it would not be feasible to
ascertain the extent of such damages with precision, if a Registration Default
were to occur. The parties hereto further agree that the Additional Interest
provided for in this Section 3 constitutes a reasonable estimate of the damages
that may be incurred by Holders of Transfer Restricted Securities by reason of a
Registration Default. Therefore, the parties hereto agree that the sole damages
payable for a violation of the terms of this Agreement with respect to which
Additional Interest is expressly provided for (including any non-compliance with
a covenant that results, directly or indirectly, in a Registration Default)
shall be such Additional Interest.
4. Registration Procedures.
(a) In connection with the Shelf Registration Statement,
the Company shall comply with all the provisions of Section 4(b) hereof and
shall use its reasonable efforts to effect such registration to permit the sale
of the Transfer Restricted Securities, and pursuant thereto, shall prepare and
file with the Commission a Shelf Registration Statement relating to the
registration on any appropriate form under the Securities Act.
(b) In connection with the Shelf Registration Statement
and any Prospectus required by this Agreement to permit the sale or resale of
Transfer Restricted Securities, the Company shall:
(i) Subject to any notice by the Company in
accordance with this Section 4(b) of the existence of any fact
or event of the kind described in Section 4(b)(iii)(D) and the
Company's right to invoke a Suspension Period in the manner
described in this Section 4(b)(i), use its reasonable efforts
to keep the Shelf Registration Statement continuously
effective during the Effectiveness Period; upon the occurrence
of any event that would cause the Shelf Registration Statement
or the Prospectus contained therein (A) to contain a material
misstatement or omission or (B) not be effective and usable
for resale of Transfer Restricted Securities during the
Effectiveness Period, unless a Suspension Period
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is then in effect, the Company shall file promptly an
appropriate amendment to the Shelf Registration Statement, a
supplement to the Prospectus or a report filed with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act, in the case of clause (A), correcting any
such misstatement or omission, and, in the case of either
clause (A) or (B), use its reasonable efforts to cause such
amendment to be declared effective and the Shelf Registration
Statement and the related Prospectus to become usable for
their intended purposes as soon as practicable thereafter.
Notwithstanding the foregoing, the Company may suspend the
effectiveness of the Shelf Registration Statement by written
notice to the Holders for a period not to exceed an aggregate
of 45 days in any 90-day period or 90 days in any 360-day
period (each such period, a "SUSPENSION PERIOD") if:
(x) an event occurs and is continuing as a
result of which the Shelf Registration Statement, the
Prospectus, any amendment or supplement thereto, or
any document incorporated by reference therein would,
in the Company's judgment, contain an untrue
statement of a material fact or omit to state a
material fact required to be stated therein or
necessary to make the statements therein not
misleading; and
(y) the Company reasonably determines that
the disclosure of such event at such time would have
a material adverse effect on the Company and its
subsidiaries taken as a whole;
provided that, in the event the disclosure relates to a
previously undisclosed proposed or pending material business
transaction, the disclosure of which the Company determines in
good faith would be reasonably likely to impede the Company's
ability to consummate such transaction, the Company may extend
the 45-day Suspension Period from 45 days to 60 days. The
Company shall not be required to specify in the written notice
to the Holders the nature of the event giving rise to the
Suspension Period.
(ii) Prepare and file with the Commission such
amendments and post-effective amendments to the Shelf
Registration Statement as may be necessary to keep the Shelf
Registration Statement effective during the Effectiveness
Period; cause the Prospectus to be supplemented by any
required Prospectus supplement, and as so supplemented to be
filed pursuant to Rule 424 (it being understood that, subject
to the circumstances set forth in the penultimate sentence of
each of Sections 2(b) and 4(d), the Company shall not be
required to file a prospectus supplement pursuant to 424(b)
with respect to any Holder that failed to submit its Holder
Questionnaire by the Questionnaire Deadline) under the
Securities Act, and to comply fully with the applicable
provisions of Rules 424 and 430A under the Securities Act in a
timely manner; and comply with the provisions of the
Securities Act with respect to the disposition of all
securities covered by the Shelf Registration Statement during
the applicable period in accordance with the intended method
or methods of distribution by the sellers thereof set forth in
the Shelf Registration Statement or supplement to the
Prospectus.
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(iii) Advise in writing the underwriter(s), if
any, and the selling Holders promptly (in the case of Holders,
at the address set forth on the Register of Securities
maintained by the Registrar of the Securities or the records
of the transfer agent of the Common Stock at such time) of
each of the following:
(A) when the Prospectus or any
Prospectus supplement or post-effective amendment has
been filed, and, with respect to the Shelf
Registration Statement or any post-effective
amendment thereto, when the same has become
effective,
(B) any request by the Commission for
amendments to the Shelf Registration Statement or
amendments or supplements to the Prospectus or for
additional information relating thereto,
(C) the issuance by the Commission of
any stop order suspending the effectiveness of the
Shelf Registration Statement under the Securities Act
or of the suspension by any state securities
commission of the qualification of the Transfer
Restricted Securities for offering or sale in any
jurisdiction, or the initiation of any proceeding for
any of the preceding purposes, or
(D) the existence of any fact or the
happening of any event, during the Effectiveness
Period (but not as to the substance of any such fact
or event), that makes any statement of a material
fact made in the Shelf Registration Statement, the
Prospectus, any amendment or supplement thereto, or
any document incorporated by reference therein
untrue, or that requires the making of any additions
to or changes in the Shelf Registration Statement or
the Prospectus in order to make the statements
therein not misleading (provided, however, that no
notice by the Company shall be required pursuant to
this clause (D) in the event that the Company either
promptly files a Prospectus supplement to update the
Prospectus or a Form 8-K or other appropriate
Exchange Act report that is incorporated by reference
into the Shelf Registration Statement, which, in
either case, contains the requisite information with
respect to such material event that results in such
Shelf Registration Statement no longer containing any
such untrue or misleading statements).
If at any time the Commission shall issue any stop order
suspending the effectiveness of the Shelf Registration
Statement, or any state securities commission or other
regulatory authority shall issue an order suspending the
qualification or exemption from qualification of the Transfer
Restricted Securities under state securities or Blue Sky laws,
the Company shall use its reasonable efforts to promptly
obtain the withdrawal or lifting of such order and will
provide to each Holder (in the case of Holders, at the address
set forth on the Register of Securities maintained by the
Registrar of the Securities or the records of the transfer
agent of the Common Stock at such time) who is named in the
Shelf Registration Statement prompt notice of the withdrawal
of any such order.
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(iv) If requested by any selling Holders or the
underwriter(s), if any, incorporate in the Shelf Registration
Statement or Prospectus, pursuant to an amendment prior to
effectiveness if necessary, such information as such selling
Holders and underwriter(s), if any, may reasonably request to
have included therein, including, without limitation
information relating to the "Plan of Distribution" of the
Transfer Restricted Securities as specified by such Holder in
such Holder Questionnaire to be delivered prior to the
Questionnaire Deadline.
(v) Furnish to each selling Holder (in the case
of Holders, at the address set forth in the Register of
Securities or the records of the transfer agent of the Common
Stock at such time) and each of the underwriter(s), if any,
upon their request, without charge, at least one copy of the
Shelf Registration Statement, as first filed with the
Commission, and of each amendment thereto (and any documents
incorporated by reference therein or exhibits thereto (or
exhibits incorporated in such exhibits by reference) as such
Person may request).
(vi) Deliver to each selling Holder (in the case
of Holders, at the address set forth in the Register of
Securities or the records of the transfer agent of the Common
Stock at such time) and underwriter(s), if any, without
charge, as many copies of the Prospectus (including each
preliminary prospectus) and any amendment or supplement
thereto as such Persons reasonably may request; subject to any
notice by the Company in accordance with this Section 4(b) of
the existence of any fact or event of the kind described in
Section 4(b)(iii) (D), the Company hereby consents to the use
of the Prospectus and any amendment or supplement thereto by
each of the selling Holders in connection with the offering
and the sale of the Transfer Restricted Securities covered by
the Prospectus or any amendment or supplement thereto.
(vii) In connection with an Underwritten Offering,
the Company shall:
(A) upon request, furnish to each
underwriter, if any, in such substance and scope as
they may reasonably request and as are customarily
made by issuers to underwriters in primary
underwritten offerings for selling security holders,
upon the date of closing of any sale of Transfer
Restricted Securities in an Underwritten
Registration:
(1) a certificate, dated the date
of such closing, signed by a Vice President
or the Chief Financial Officer of the
Company confirming, as of the date thereof,
the matters customarily covered in an
officer's certificate to underwriters in
connection with underwritten offerings of
securities;
(2) opinions, each dated the date
of such closing, of counsel to the Company
covering such of the matters as are
customarily covered in legal opinions to
underwriters in connection with underwritten
offerings of securities; and
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(3) customary comfort letters,
dated the date of such closing, from the
Company's independent accountants (and from
any other accountants whose report is
contained or incorporated by reference in
the Shelf Registration Statement) in the
customary form and covering matters of the
type customarily covered in comfort letters
to underwriters in connection with
underwritten offerings of securities; and
(B) deliver such other documents and
certificates as may be reasonably requested by such
parties to evidence compliance with clause (A) above
and with any customary conditions contained in the
underwriting agreement or other agreement entered
into by the selling Holders pursuant to this clause
(x).
(viii) Before any public offering of Transfer
Restricted Securities, cooperate with the selling Holders, the
underwriter(s), if any, and their counsel in connection with
the registration and qualification of the Transfer Restricted
Securities under the securities or Blue Sky laws of such
jurisdictions in the United States as the selling Holders or
underwriter(s), if any, may reasonably request and do any and
all other acts or things necessary or advisable to enable the
disposition in such jurisdictions of the Transfer Restricted
Securities covered by the Shelf Registration Statement;
provided, however, that the Company shall not be required (A)
to register or qualify as a foreign corporation or a dealer of
securities where it is not now so qualified or to take any
action that would subject it to the service of process in any
jurisdiction where it is not now so subject or (B) to subject
themselves to taxation in any such jurisdiction if they are
not now so subject.
(ix) Cooperate with the selling Holders and
underwriter(s), if any, to facilitate the timely preparation
and delivery of certificates representing Transfer Restricted
Securities to be sold and not bearing any restrictive legends
(unless required by applicable securities laws); and enable
such Transfer Restricted Securities to be in such
denominations and registered in such names as the Holders may
request at least two Business Days before any sale of Transfer
Restricted Securities.
(xii) Use its reasonable efforts to cause the
Transfer Restricted Securities covered by the Shelf
Registration Statement to be registered with or approved by
such other U.S. governmental agencies or authorities as may be
necessary to enable the seller or sellers thereof to
consummate the disposition of such Transfer Restricted
Securities.
(xiii) Subject to Section 4(b)(i) hereof, if any
fact or event contemplated by Section 4(b)(iii)(D) hereof
shall exist or have occurred, use its reasonable efforts to
prepare a supplement or post-effective amendment to the Shelfs
Registration Statement or related Prospectus or any document
incorporated therein by reference or file any other required
document so that, as thereafter
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delivered to the purchasers of Transfer Restricted Securities,
the Prospectus will not contain an untrue statement of a
material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein,
in light of the circumstances in which they are made, not
misleading; provided that the Company shall not be required to
comply with the foregoing obligations during any Suspension
Period or any period during which Additional Interest is
accruing.
(xiv) Provide CUSIP numbers for all Transfer
Restricted Securities not later than the effective date of the
Shelf Registration Statement and provide the Trustee under the
Indenture with certificates for the Securities that are in a
form eligible for deposit with The Depository Trust Company.
(xv) Cooperate and assist in any filings required
to be made with the NASD and in the performance of any due
diligence investigation by any underwriter that is required to
be retained in accordance with the rules and regulations of
the NASD.
(xvi) Otherwise use its reasonable efforts to
comply with all applicable rules and regulations of the
Commission and all reporting requirements under the rules and
regulations of the Exchange Act.
(xvii) Cause the Indenture to be qualified under
the TIA not later than the effective date of the Shelf
Registration Statement required by this Agreement, and, in
connection therewith, cooperate with the Trustee and the
holders of Securities to effect such changes to the Indenture
as may be required for such Indenture to be so qualified in
accordance with the terms of the TIA; and execute and use its
reasonable efforts to cause the Trustee thereunder to execute
all documents that may be required to effect such changes and
all other forms and documents required to be filed with the
Commission to enable such Indenture to be so qualified in a
timely manner.
(xviii) Cause all Common Stock covered by the Shelf
Registration Statement to be listed or quoted, as the case may
be, on each securities exchange or automated quotation system
on which Common Stock is then listed or quoted.
(c) Each Holder agrees by acquisition of a Transfer
Restricted Security that, upon receipt of any notice (a "SUSPENSION NOTICE")
from the Company of the existence of any fact of the kind described in Section
4(b)(iii)(D) hereof, such Holder will, and will use its reasonable efforts to
cause any underwriter(s) in an Underwritten Offering to, forthwith discontinue
disposition of Transfer Restricted Securities pursuant to the Shelf Registration
Statement until:
(i) such Holder has received copies of the
supplemented or amended Prospectus contemplated by Section
4(b)(xiii) hereof; or
(ii) such Holder is advised in writing by the
Company that the use of the Prospectus may be resumed, and has
received copies of any additional or supplemental filings that
are incorporated by reference in the Prospectus.
14
Each Holder agrees to keep the receipt of a Suspension Notice and its contents
confidential. If so directed by the Company, each Holder will deliver to the
Company (at the Company's expense) all copies, other than permanent file copies
then in such Holder's possession, of the Prospectus covering such Transfer
Restricted Securities that was current at the time of receipt of such notice of
suspension.
(d) Each holder of Securities who intends to be named as
a selling Holder in the Shelf Registration Statement shall furnish to the
Company in writing, within 20 Business Days after the date of the Holder
Questionnaire, such information regarding such holder and the proposed
distribution by such holder of its Securities as the Company may reasonably
request for use in connection with the Shelf Registration Statement or
Prospectus or preliminary Prospectus included therein. Holders that do not
complete the Holder Questionnaire and deliver it to the Company shall not be
named as selling securityholders in the Prospectus or preliminary Prospectus
included in the Shelf Registration Statement and therefore shall not be
permitted to sell any Transfer Restricted Securities pursuant to the Shelf
Registration Statement; provided, however, that notwithstanding the foregoing, a
holder that is a transferee of Securities who furnishes the Company a properly
completed Holder Questionnaire on or prior to the earlier of (i) the 20th
business day after the completion of a transfer of Securities to a holder of
Securities that is a transferee and (ii) 9:00 a.m., San Francisco time, on the
second Business Day before the effectiveness of the Shelf Registration Statement
shall be named as selling securityholders in the Prospectus or preliminary
Prospectus included in the Shelf Registration Statement, provided, further, that
upon request from a holder of Securities that did not return a Holder
Questionnaire on a timely basis, (i) the Company shall distribute a Holder
Questionnaire to such holder at the address set forth in the request and (ii)
upon receipt of a properly completed Holder Questionnaire from such holder, the
Company shall use its reasonable efforts to name such holder as a selling
securityholder by means of a pre-effective amendment or, if permitted by the
Commission, by means of a Prospectus supplement to the Shelf Registration
Statement (provided, that the Company shall have no obligation to pay Additional
Interest to such Holder for its failure to file a pre-effective amendment or
Prospectus supplement). Each Holder who intends to be named as a selling Holder
in the Shelf Registration Statement shall promptly furnish to the Company in
writing such other information as the Company may from time to time reasonably
request in writing.
(e) Upon the effectiveness of the Shelf Registration
Statement, each Holder shall notify the Company at least five Business Days
prior to any intended distribution of Transfer Restricted Securities pursuant to
the Shelf Registration Statement (a "SALE NOTICE"), which notice shall be
effective for five Business Days. Each Holder of Transfer Restricted Securities,
by accepting the same, agrees to hold any communication by the Company in
response to a Sale Notice in confidence. Upon receipt of a Sale Notice, the
Company shall inform each Holder in writing of the existence of a Suspension
Period or otherwise, of the kind of event described in Section 4(b)(iii)(D).
5. Registration Expenses.
All expenses incident to the Company's performance of
or compliance with this Agreement shall be borne by the Company regardless of
whether a Shelf Registration Statement becomes effective, including, without
limitation:
15
(i) all registration and filing fees and
expenses (including filings made with the NASD);
(ii) all fees and expenses of compliance with
federal securities and state Blue Sky or securities laws;
(iii) all expenses of printing (including printing
of Prospectuses and certificates for the Common Stock to be
issued upon conversion of the Securities) and the Company's
expenses for messenger and delivery services and telephone;
(iv) all fees and disbursements of counsel to the
Company;
(v) all application and filing fees in
connection with listing (or authorizing for quotation) the
Common Stock on a national securities exchange or automated
quotation system pursuant to the requirements hereof; and
(vi) all fees and disbursements of independent
certified public accountants of the Company.
The Company shall bear its internal expenses (including,
without limitation, all salaries and expenses of their officers and employees
performing legal, accounting or other duties), the expenses of any annual audit
and the fees and expenses of any Person, including special experts, retained by
the Company. Notwithstanding the foregoing, the Holders of the Transfer
Restricted Securities being registered shall pay all agency fees and commissions
and underwriting discounts and commissions attributable to the sale of such
Transfer Restricted Securities and the fees and disbursements of any counsel or
other advisors or experts retained by such Holders (severally and jointly),
other than the counsel and experts that represent the Company specifically
referred to above.
6. Indemnification and Contribution.
(a) The Company shall indemnify and hold harmless each
Holder, such Holder's officers, directors and employees and each person, if any,
who controls such Holder within the meaning of the Securities Act (each, an
"INDEMNIFIED HOLDER"), from and against any loss, claim, damage or liability,
joint or several, or any action in respect thereof (including, but not limited
to, any loss, claim, damage, liability or action relating to resales of the
Transfer Restricted Securities), to which such Indemnified Holder may become
subject, insofar as any such loss, claim, damage, liability or action arises out
of, or is based upon:
(i) any untrue statement or alleged untrue
statement of a material fact contained in (A) the Shelf
Registration Statement or Prospectus or any amendment or
supplement thereto or (B) any blue sky application or other
document or any amendment or supplement thereto prepared or
executed by the Company (or based upon written information
furnished by or on behalf of the Company expressly for use in
such blue sky application or other document or amendment on
supplement) filed in any jurisdiction specifically for the
purpose of qualifying any or all of the Transfer Restricted
Securities under the securities law
16
of any state or other jurisdiction (such application or
document being hereinafter called a "BLUE SKY APPLICATION");
or
(ii) the omission or alleged omission to state
therein any material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading,
and shall reimburse each Indemnified Holder promptly upon demand for any legal
or other expenses reasonably incurred by such Indemnified Holder in connection
with investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action as such expenses are incurred; provided,
however, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage, liability or action arises out of, or is
based upon, any untrue statement or alleged untrue statement or omission or
alleged omission made in the Shelf Registration Statement or Prospectus or
amendment or supplement thereto or Blue Sky Application in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
such Holder (or its related Indemnified Holder) specifically for use therein;
provided, further, that the Company shall not be liable to any Indemnified
Holder under the indemnity agreement in this subsection (a) with respect to any
preliminary Prospectus to the extent that any such loss, claim, damage or
liability of such Indemnified Holder results from the fact that such Indemnified
Holder sold Transfer Restricted Securities to a Person as to whom it shall be
established that there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the final Prospectus in any case where such
delivery is required by the Securities Act if the Company had previously
furnished copies thereof in sufficient quantities to such Indemnified Holder and
the loss, claim, damage or liability of such Indemnified Holder results from an
untrue statement or omission of a material fact contained in the preliminary
Prospectus which was (i) identified to such Indemnified Holder at or prior to
the earlier of the filing with the Commission or the furnishing to such
Indemnified Holder of the corrected Prospectus and (ii) corrected in the final
Prospectus. The foregoing indemnity agreement is in addition to any liability
which the Company may otherwise have to any Indemnified Holder.
(b) Each Holder, severally and not jointly, shall
indemnify and hold harmless the Company, its officers, directors and employees
and each person, if any, who controls the Company within the meaning of the
Securities Act, from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof, to which the Company or any such
officer, employee or controlling person may become subject, insofar as any such
loss, claim, damage or liability or action arises out of, or is based upon:
(i) any untrue statement or alleged untrue
statement of any material fact contained in the Shelf
Registration Statement or Prospectus or any amendment or
supplement thereto or any Blue Sky Application; or
(ii) the omission or the alleged omission to
state therein any material fact required to be stated therein
or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading,
but in each case only to the extent that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written
17
information furnished to the Company by or on behalf of such Holder (or its
related Indemnified Holder) specifically for use therein, and shall reimburse
the Company and any such officer, employee or controlling person promptly upon
demand for any legal or other expenses reasonably incurred by the Company or any
such officer, employee or controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage, liability
or action as such expenses are incurred. The foregoing indemnity agreement is in
addition to any liability which any Holder may otherwise have to the Company and
any such officer, employee or controlling person.
(c) Promptly after receipt by an indemnified party under
this Section 6 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 6, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 6 except to the extent it has
been materially prejudiced by such failure and, provided, further, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section 6.
If any such claim or action shall be brought against an indemnified party, and
it shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly with
any other similarly notified indemnifying party, to assume the defense thereof
with counsel satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 6 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
the Holders shall have the right to employ a single counsel to represent jointly
a the Holders and their officers, employees and controlling persons who may be
subject to liability arising out of any claim in respect of which indemnity may
be sought by the Holders against the Company under this Section 6 if the Holders
seeking indemnification shall have been advised by legal counsel that there may
be one or more legal defenses available to such Holders and their respective
officers, employees and controlling persons that are different from or
additional to those available to the Company, and in that event the fees and
expenses of such separate counsel shall be paid by the Company. No indemnifying
party shall:
(i) without the prior written consent of the
indemnified parties (which consent shall not be unreasonably
withheld) settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification
or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party
from all liability arising out of such claim, action, suit or
proceeding, or
(ii) be liable for any settlement of any such
action effected without its written consent (which consent
shall not be unreasonably withheld), but if settled with its
written consent or if there be a final judgment for the
plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any
18
indemnified party from and against any loss of liability by
reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 6
shall for any reason be unavailable or insufficient to hold harmless an
indemnified party under Section 6(a) or 6(b) in respect of any loss, claim,
damage or liability (or action in respect thereof) referred to therein, each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability (or action in respect thereof):
(i) in such proportion as is appropriate to
reflect the relative benefits received by the Company from the
offering and sale of the Transfer Restricted Securities on the
one hand and a Holder with respect to the sale by such Holder
of the Transfer Restricted Securities on the other, or
(ii) if the allocation provided by clause
(6)(d)(i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative
benefits referred to in clause 6(d)(i) but also the relative
fault of the Company on the one hand and the Holders on the
other in connection with the statements or omissions or
alleged statements or alleged omissions that resulted in such
loss, claim, damage or liability (or action in respect
thereof), as well as any other relevant equitable
considerations.
The relative benefits received by the Company on the one hand and a Holder on
the other with respect to such offering and such sale shall be deemed to be in
the same proportion as the total net proceeds from the offering of the
Securities purchased under the Purchase Agreement (before deducting expenses)
received by the Company, on the one hand, bear to the total proceeds received by
such Holder with respect to its sale of Transfer Restricted Securities on the
other. The relative fault of the parties shall be determined by reference to
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or the Holders on the other, the intent
of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
each Holder agree that it would not be just and equitable if the amount of
contribution pursuant to this Section 6(d) were determined by pro rata
allocation or by any other method of allocation that does not take into account
the equitable considerations referred to in the first sentence of this paragraph
(d). The amount paid or payable by an indemnified party as a result of the loss,
claim, damage or liability, or action in respect thereof, referred to above in
this Section 6 shall be deemed to include, for purposes of this Section 6, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending or preparing to defend any such
action or claim. Notwithstanding the provisions of this Section 6, no Holder
shall be required to contribute any amount in excess of the amount by which the
total price at which the Transfer Restricted Securities purchased by it were
resold exceeds the amount of any damages which such Holder has otherwise been
required to pay by reason of any untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person
19
who was not guilty of such fraudulent misrepresentation. The Holders'
obligations to contribute as provided in this Section 6(d) are several and not
joint.
7. Rule 144A. In the event the Company is not subject to
Section 13 or 15(d) of the Exchange Act, the Company hereby agrees with each
Holder, for so long as any Transfer Restricted Securities remain outstanding, to
make available to any Holder or beneficial owner of Transfer Restricted
Securities in connection with any sale thereof and any prospective purchaser of
such Transfer Restricted Securities from such Holder or beneficial owner, the
information required by Rule 144A(d)(4) under the Securities Act in order to
permit resales of such Transfer Restricted Securities pursuant to Rule 144A.
8. Underwritten Registrations. The Holders of Transfer
Restricted Securities covered by the Shelf Registration Statement who desire to
do so may sell such Transfer Restricted Securities in an Underwritten Offering
if approved by the Company in its sole discretion; provided, however that no
such Holder may participate in any Underwritten Registration hereunder unless
such Holder:
(i) agrees to sell such Holder's Transfer
Restricted Securities on the basis provided in any
underwriting arrangements approved by the Persons entitled
hereunder to approve such arrangements; and
(ii) completes and executes all reasonable
questionnaires, powers of attorney, indemnities, underwriting
agreements, lock-up letters and other documents required under
the terms of such underwriting arrangements.
In any such Underwritten Offering, the investment banker or investment bankers
and manager or managers that will administer the offering will be selected by a
Majority of Holders whose Transfer Restricted Securities are included in such
offering; provided, that such investment bankers and managers must be reasonably
satisfactory to the Company. If requested by the underwriter(s), if any, the
Company agrees to make appropriate officers of the Company available to the
underwriters for meetings with prospective purchasers of the Transfer Restricted
Securities and prepare and present to potential investors customary "road show"
or marketing materials in a manner consistent with other new issuances of other
securities similar to the Transfer Restricted Securities.
9. Miscellaneous.
(a) Actions Affecting Transfer Restricted Securities. The
Company shall not, directly or indirectly, take any action with respect to the
Transfer Restricted Securities as a class that would adversely affect the
ability of the Holders of Transfer Restricted Securities to include such
Transfer Restricted Securities in a registration undertaken pursuant to this
Agreement.
(b) No Inconsistent Agreements. The Company will not, on
or after the date of this Agreement, enter into any agreement with respect to
its securities that is inconsistent with the rights granted to the Holders in
this Agreement or otherwise conflicts with the provisions hereof. In addition,
the Company shall not grant to any of its security holders (other than the
Holders of Transfer Restricted Securities in such capacity) the right to include
any of its
20
securities in the Shelf Registration Statement provided for in this Agreement
other than the Transfer Restricted Securities. The Company has not previously
entered into any agreement (which has not expired or been terminated) granting
any registration rights with respect to its securities to any Person which
rights conflict with the provisions hereof.
(c) Amendments and Waivers. This Agreement may not be
amended, modified or supplemented, and waivers or consents to or departures from
the provisions hereof may not be given, unless the Company has obtained the
written consent of a Majority of Holders.
(d) Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing by hand-delivery,
first-class mail (registered or certified, return receipt requested), telex,
facsimile transmission, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on
the records of the Registrar under the Indenture or the
transfer agent of the Common Stock, as the case may be; and
(ii) if to the Company:
LSI Logic Corporation
1621 Barber Lane
Milpitas, California 95035
Attention: General Counsel
Tel: (408) 433-8000
Fax: (408) 954-3353;
with a copy to:
Wilson Sonsini Goodrich & Rosati
650 Page Mill Road
Palo Alto, California 94304
Attention: Michael Occhiolini
Tel: (650) 493-9300
Fax: (650) 493-6811
All such notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally delivered; five
Business Days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt acknowledged, if transmitted by
facsimile; and on the next Business Day, if timely delivered to an air courier
guaranteeing overnight delivery.
(e) Successors and Assigns. This Agreement shall inure to
the benefit of and be binding upon the successors and assigns of each of the
parties, including without limitation and without the need for an express
assignment, subsequent Holders of Transfer Restricted Securities; provided,
however, that (i) this Agreement shall not inure to the benefit of or be binding
upon a successor or assign of a Holder unless and to the extent such successor
or assign
21
acquired Transfer Restricted Securities from such Holder and (ii) nothing
contained herein shall be deemed to permit any assignment, transfer or other
disposition of Transfer Restricted Securities in violation of the terms of the
Purchase Agreement or the Indenture. If any transferee of any Holder shall
acquire Transfer Restricted Securities, in any manner, whether by operation of
law or otherwise, such Transfer Restricted Securities shall be held subject to
all of the terms of this Agreement, and by taking and holding such Transfer
Restricted Securities such person shall be conclusively deemed to have agreed to
be bound by and to perform all of the terms and provisions of this Agreement.
(f) Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(g) Securities Held by the Company or Their Affiliates.
Whenever the consent or approval of Holders of a specified percentage of
Transfer Restricted Securities is required hereunder, Transfer Restricted
Securities held by the Company or its "affiliates" (as such term is defined in
Rule 405 under the Securities Act) shall not be counted in determining whether
such consent or approval was given by the Holders of such required percentage.
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(j) Severability. If any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(k) Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties hereto
in respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein with respect to the registration rights granted by the Company with
respect to the Transfer Restricted Securities. This Agreement supersedes all
prior agreements and understandings between the parties with respect to such
subject matter.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
LSI LOGIC CORPORATION
By: /s/ Bryon Look
------------------------------------------
Name: Bryon Look
Title: Executive Vice President and Chief
Financial Officer
MORGAN STANLEY & CO. INCORPORATED
By: /s/ Mathew Hein
------------------------------------------
Name: Mathew Hein
Title: Vice President