Exhibit 10.18
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and entered
into as of July 31, 1997, by and among Wind River Systems, Inc., a Delaware
corporation (the "Company"), and Deutsche Morgan Grenfell Inc., Hambrecht &
Quist LLC and Wessels, Arnold & Henderson, L.L.C. (the "Initial Purchasers")
pursuant to the Purchase Agreement, dated July 31, 1997 (the "Purchase
Agreement"), among the Company and The Initial Purchasers. In order to
induce the Initial Purchasers to enter into the Purchase Agreement, the
Company has agreed to provide the registration rights set forth in this
Agreement. The execution of this Agreement is a condition to the closing
under the Purchase Agreement.
The Company agrees with the Initial Purchasers, (i) for their benefit as
Initial Purchasers and (ii) for the benefit of the holders from time to time
of the Notes (including the Initial Purchasers) and the holders from time to
time of the Common Stock issued upon conversion of the Notes (each of the
foregoing a "Holder" and together the "Holders"), as follows:
1. DEFINITIONS. Capitalized terms used herein without definition shall
have their respective meanings set forth in the Purchase Agreement. As used
in this Agreement, the following terms shall have the following meanings:
AFFILIATE: "Affiliate" means, with respect to any specified person,
(i) any other person directly or indirectly controlling or controlled by, or
under direct or indirect common control with, such specified person or (ii)
any executive officer or director of such other person. For purposes of this
definition, the term "control" (including the terms "controlling,"
"controlled by" and "under common control with") of a person means the
possession, direct or indirect, of the power (whether or not exercised) to
direct or cause the direction of the management and policies of a person,
whether through the ownership of voting securities, by contract, or otherwise.
BUSINESS DAY: Each Monday, Tuesday, Wednesday, Thursday and Friday
that is not a day on which banking institutions in The City of New York are
authorized or obligated by law or executive order to close.
COMMON STOCK: The shares of common stock, par value $.001 per share,
of the Company and any other shares of common stock as may constitute "Common
Stock" for purposes of the Indenture, in each case, as issuable or issued
upon conversion of the Notes.
DAMAGES ACCRUAL PERIOD: See Section 2(c) hereof.
DAMAGES PAYMENT DATE: Each of the semi-annual interest payment
dates provided in the Indenture.
DEFERRAL PERIOD: See Section 2(d) hereof.
1.
EFFECTIVENESS PERIOD: The period commencing with the date hereof
and ending on the earlier of the date that is two years after the latest date
of original issuance of the Notes and the date that all Registrable
Securities have ceased to be Registrable Securities.
EVENT: See Section 2(e) hereof.
EVENT DATE: See Section 2(e) hereof.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended, and
the Rules and Regulations of the SEC promulgated thereunder.
FILING DATE: See Section 2(a) hereof.
HOLDER: See the second paragraph of this Agreement.
INDENTURE: The Indenture, dated as of July 31, 1997, among the
Company and Deutsche Bank AG, New York Branch, as trustee, pursuant to which
the Notes are being issued, as amended or supplemented from time to time in
accordance with the terms hereof.
INITIAL PURCHASERS: See the first paragraph of this Agreement.
INITIAL SHELF REGISTRATION: See Section 2(a) hereof.
LIQUIDATED DAMAGES: See Section 2(e) hereof.
LOSSES: See Section 6 hereof.
MANAGER: As such term is defined in the Purchase Agreement.
MANAGING UNDERWRITERS: The investment banking firm or firms that
shall manage or co-manage an Underwritten Offering.
NOTES: The 5% Convertible Subordinated Notes due 2002 of the
Company being issued and sold pursuant to the Purchase Agreement and the
Indenture.
NOTICE HOLDER: See Section 2(d)(i) hereof.
PURCHASE AGREEMENT: See the first paragraph of this Agreement.
PROSPECTUS: The prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any amendment or prospectus
supplement,
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including post-effective amendments, and all material incorporated by
reference or deemed to be incorporated by reference in such Prospectus.
RECORD HOLDER: (i) with respect to any Damages Payment Date
relating to any Note as to which any such Liquidated Damages have accrued,
the registered holder of such Note on the record date with respect to the
interest payment date under the Indenture on which such Damages Payment Date
shall occur and (ii) with respect to any Damages Payment Date relating to any
Common Stock as to which any such Liquidated Damages have accrued, the
registered holder of such Common Stock 15 days prior to the next succeeding
Damages Payment Date.
REGISTRABLE SECURITIES: The Notes and the Common Stock into which
the Notes are convertible or converted, whether or not such Notes have been
converted, and any Common Stock issued with respect thereto upon any stock
dividend, split or similar event until, in the case of any such Note or any
such Common Stock, (i) it is effectively registered under the Securities Act
and disposed of in accordance with the Registration Statement covering it,
(ii) it is saleable by the holder thereof pursuant to Rule 144(k) or (iii) it
is sold to the public pursuant to Rule 144, and the legends with respect to
transfer restrictions required under the Indenture (other than any such
legends required solely as the consequence of the fact that the Registrable
Securities (or the Notes, upon the conversion of which, such Registrable
Securities were issued or are issuable) are owned by, or were previously
owned by, the Company or an Affiliate of the Company) are removed or
removable in accordance with the terms of the Indenture.
REGISTRATION EXPENSES: See Section 5 hereof.
REGISTRATION STATEMENT: Any registration statement of the Company
which covers any of the Registrable Securities pursuant to the provisions of
this Agreement, including the Prospectus, amendments and supplements to such
registration statement, including post-effective amendments, all exhibits,
and all material incorporated by reference or deemed to be incorporated by
reference in such registration statement.
RULE 144: Rule 144 under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
RULE 144A: Rule 144A under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
SEC: The Securities and Exchange Commission.
SECURITIES ACT: The Securities Act of 1933, as amended, and the
rules and regulations promulgated by the SEC thereunder.
SELLING PERIOD: See Section 2(d)(i) hereof.
SHELF REGISTRATION: See Section 2(a) hereof.
3.
SPECIAL COUNSEL: Venture Law Group, A Professional Corporation, or
such other successor counsel as shall be specified by the holders of a
majority of the Registerable Securities, the fees and expenses of which will
be paid by the Company pursuant to Section 5 hereof.
SUBSEQUENT SHELF REGISTRATION: See Section 2(b) hereof.
TIA: The Trust Indenture Act of 1939, as amended.
TRUSTEE: The Trustee under the Indenture.
UNDERWRITTEN REGISTRATION OR UNDERWRITTEN OFFERING: A registration
in which securities of the Company are sold to an underwriter for reoffering
to the public, PROVIDED, that the Managing Underwriters of an Underwritten
Offering shall be approved by the Company, which approval shall not be
unreasonably withheld.
2. SHELF REGISTRATION.
(a) SHELF REGISTRATION. The Company shall prepare and file with
the SEC, as soon as practicable but in any event on or prior to the date
ninety (90) days following the latest date of original issuance of the Notes
(the "Filing Date"), a Registration Statement for an offering to be made on a
continuous basis pursuant to Rule 415 of the Securities Act (a "Shelf
Registration") registering the resale from time to time by Holders thereof of
all of the Registrable Securities (the "Initial Shelf Registration"). The
Initial Shelf Registration shall be on Form S-3 or another appropriate form
permitting registration of such Registrable Securities for resale by such
Holders in the manner or manners designated by them (including, without
limitation, one or more Underwritten Offerings). Each Holder who first
becomes a Holder prior to the Filing Date may include its Registrable
Securities in the Shelf Registration by obtaining from the Trustee or the
Company a selling securityholder questionnaire in such form provided by the
Company (a "Selling Securityholder Questionnaire") and, not later than 10
days prior to the Filing Date, returning to the Company a duly completed
Selling Securityholder Questionnaire (a) providing such information with
respect to such Holder and its Registrable Securities required to be included
in the Shelf Registration (the "Requisite Information") and (b) agreeing to
be named as a Selling Securityholder therein in accordance with the terms
hereof. Failure of any Holder to return a completed Selling Securityholder
Questionnaire prior to the Filing Date shall not affect such Holder's rights
under Section 2(d) hereof. The Company shall use its reasonable efforts to
cause the Initial Shelf Registration to be declared effective under the
Securities Act as soon as practicable and, in any event, within one hundred
and eighty (180 )days following the latest date of original issuance of the
Notes and to keep the Initial Shelf Registration effective under the
Securities Act until the earlier of the expiration of the Effectiveness
Period or the date a Subsequent Shelf Registration, as defined below,
covering all of the Registrable Securities has been declared effective under
the Securities Act.
(b) If the Initial Shelf Registration or any Subsequent Shelf
Registration, as
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defined below, ceases to be effective for any reason as a result of the
issuance of a stop order by the SEC at any time during the Effectiveness
Period, the Company shall use its reasonable efforts to obtain the prompt
withdrawal of any order suspending the effectiveness thereof, and in any
event shall within thirty (30) days of such cessation of effectiveness amend
the Shelf Registration in a manner reasonably expected to obtain the
withdrawal of the order suspending the effectiveness thereof, or file an
additional Shelf Registration covering all of the then Registrable Securities
(a "Subsequent Shelf Registration"). If a Subsequent Shelf Registration is
filed, the Company shall use its reasonable efforts to cause the Subsequent
Shelf Registration to be declared effective as soon as practicable after such
filing and to keep such Registration Statement continuously effective until
the end of the Effectiveness Period.
(c) The Company shall supplement and amend the Shelf Registration
if required by the rules, regulations or instructions applicable to the
registration form used by the Company for such Shelf Registration, if
required by the Securities Act, or if reasonably requested by the Initial
Purchasers or by the Trustee on behalf of a majority of the Holders of the
Registrable Securities covered by such Registration Statement or by any
Managing Underwriter of such Registrable Securities in the event of an
Underwritten Offering of the Registrable Securities.
(d) Each Holder of Registrable Securities agrees that if such
Holder wishes to sell its Registrable Securities pursuant to a Shelf
Registration and related Prospectus, it will do so only in accordance with
this Section 2(d). To effect a sale of Registrable Securities pursuant to a
Shelf Registration, each Holder included in the Shelf Registration as a
Selling Securityholder of Registrable Securities must, at least 10 Business
Days prior to any intended distribution of Registrable Securities, deliver
written notice to the Company specifying the date upon which the Holder
intends to begin such distribution and providing any additional or modified
Requisite Information or a statement that the Requisite Information
previously provided remains true and correct as of the date of such notice.
A Holder of Registrable Securities not included in the Shelf Registration
that wishes to have its Registrable Securities included in a Shelf
Registration must, simultaneously with or prior to delivery of the notice
specified in the preceding sentence, obtain a Selling Securityholder
Questionnaire from the Trustee or the Company and deliver to the Company a
completed Selling Securityholder Questionnaire (a) providing Requisite
Information and (b) agreeing to be named as a Selling Securityholder in the
Shelf Registration in accordance with the terms hereof. Each Holder may
deliver a maximum of three (3) notices pursuant to this Section 2(d) in any
12-month period. As soon as practicable after the date such notice is
provided, and in any event within five Business Days after such date, the
Company shall either:
(i) (A) If necessary, prepare and file with the Commission a
post-effective amendment to the Shelf Registration or a supplement to the
related Prospectus or a supplement or amendment to any document incorporated
therein by reference or file any other required document so that such
Registration Statement 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 so that, as
thereafter delivered to purchasers of the Registrable Securities being sold
thereunder, such Prospectus will not contain an untrue
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statement of a material fact or omit to state 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; (B) provide the
Notice Holders (as defined below) copies of any documents filed pursuant to
Section 2(d)(i)(A); and (C) inform the Notice Holders that the Company has
complied with its obligations in Section 2(d)(i)(A) (or that, if the Company
has filed a post-effective amendment to the Shelf Registration which has not
yet been declared effective, the Company will notify the Notice Holders to
that effect, will use its reasonable efforts to secure the effectiveness of
such post-effective amendment and will immediately notify the Notice Holders
when the amendment has become effective); each Holder who has given notice of
intention to distribute such Holder's Registrable Securities in accordance
with Section 2(d) hereof (a "Notice Holder") will sell all or any of such
Registrable Securities pursuant to the Shelf Registration and related
Prospectus only during the 30-day period commencing with the date on which
the Company gives notice, pursuant to Section 2(d)(i)(C), that the
Registration Statement and Prospectus may be used for such purpose (such
30-day period is referred to as a "Selling Period"). The Notice Holders will
not sell any Registrable Securities pursuant to such Registration Statement
or Prospectus after such Selling Period without giving a new notice of
intention to sell pursuant to Section 2(d) hereof and receiving a further
notice from the Company pursuant to Section 2(d)(i)(C) hereof.
(ii) in the event (A) of the happening of any event of the kind
described in Section 3(c)(ii), 3(c)(iii), 3(c)(iv), 3(c)(v) or 3(c)(vi)
hereof or (B) that, in the judgment of the Company, it is advisable to
suspend use of the Prospectus for a discrete period of time due to pending
material corporate developments or similar material events that have not yet
been publicly disclosed and as to which the Company believes public
disclosure will be prejudicial to the Company, the Company shall deliver a
certificate in writing, signed by an authorized executive officer of the
Company, to the Notice Holders, the Special Counsel and the Managing
Underwriters, if any, to the effect of the foregoing and, upon receipt of
such certificate, each such Notice Holder's Selling Period will not commence
or, if commenced, will be suspended, until such Notice Holder's receipt of
copies of the supplemented or amended Prospectus provided for in Section
2(d)(i)(A) hereof, or until it is advised in writing by the Company that the
Prospectus may be used, and has received copies of any additional or
supplemental filings that are incorporated or deemed incorporated by
reference in such Prospectus. The Company will use its reasonable efforts to
ensure that the use of the Prospectus may be resumed, and the Selling Period
will commence, as soon as practicable and, in the case of a pending
development or event referred to in Section 2(d)(ii)(B) hereof, as soon as
practicable following public disclosure of such pending material corporate
development or similar material event. Notwithstanding the foregoing, (A) the
Company shall not under any circumstances be entitled to exercise its right
under this Section 2(d)(ii) to defer the commencement of a Selling Period
more than one (1) time in any three (3) month period and the period in which
a Selling Period is suspended shall not exceed fifteen (15) days unless the
Company shall deliver to such Notice Holders a second notice to the effect
set forth above, which shall have the effect of extending the period during
which such Selling Period is deferred or suspended by up to an additional
fifteen (15) days, or such shorter period of time as is specified in such
second notice, and (B) in no event shall the Company be permitted to extend
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the period during which such Selling Period is deferred from and after the
date a Notice Holder provides notice to the Company in accordance with this
Section 2(d) of its intention to distribute Registrable Securities (a
"Deferral Period") beyond such thirty (30) day period, PROVIDED, that the
Company may suspend the use of such Prospectus for longer periods so long as
the Company complies with its obligations, if any, to pay Liquidated Damages
in accordance with Section 2(e) hereof.
(e) The parties hereto agree that the Holders of Registrable
Securities will suffer damages, and that it would not be feasible to
ascertain the extent of such damages with precision, if (i) the Initial Shelf
Registration has not been filed on or prior to the Filing Date (unless the
delay in filing is caused by failure of Holders to provide Requisite
Information and agree to be named as Selling Securityholders in the Shelf
Registration or by objections received pursuant to Section 3(a) hereof), (ii)
prior to the end of the Effectiveness Period, the SEC shall have issued a
stop order suspending the effectiveness of the Shelf Registration or
proceedings have been initiated with respect to the Shelf Registration under
Section 8(d) or 8(e) of the Securities Act, (iii) the aggregate number of
days in any one Deferral Period exceeds the periods permitted pursuant to
Section 2(d)(ii) hereof or (iv) the number of Deferral Periods exceeds the
number permitted pursuant to Section 2(d)(ii) hereof (each of the events of a
type described in any of the foregoing clauses (i) through (iv) are
individually referred to herein as an "Event," and the Filing Date in the
case of clause (i), the date on which the effectiveness of the Shelf
Registration has been suspended or proceedings with respect to the Shelf
Registration under Section 8(d) or 8(e) of the Securities Act have been
commenced in the case of clause (ii), the date on which the duration of a
Deferral Period exceeds the periods permitted by Section 2(d)(ii) hereof in
the case of clause (iii), and the date of the commencement of a Deferral
Period that causes the limit on the number of Deferral Periods under Section
2(d)(ii) hereof to be exceeded in the case of clause (iv), being referred to
herein as an "Event Date"). Events shall be deemed to continue until the
date of the termination of such Event, which shall be the following dates
with respect to the respective types of Events: the date the Initial
Registration Statement is filed in the case of an Event of the type described
in clause (i), the date that all stop orders suspending effectiveness of the
Shelf Registration have been removed and the proceedings initiated with
respect to the Shelf Registration under Section 8(d) or 8(e) of the
Securities Act have terminated, as the case may be, in the case of Events of
the types described in clause (ii), termination of the Deferral Period which
caused the aggregate number of days in any one Deferral Period to exceed the
number permitted by Section 2(d)(ii) to be exceeded in the case of Events of
the type described in clause (iii), and termination of the Deferral Period
the commencement of which caused the number of Deferral Periods permitted by
Section 2(d)(ii) to be exceeded in the case of Events of the type described
in clause (iv).
Accordingly, upon the occurrence of any Event and until such time as
there are no Events which have occurred and are continuing (a "Damages
Accrual Period"), commencing on the Event Date on which such Damages Accrual
Period began, the Company agrees to pay, as liquidated damages, and not as a
penalty, an additional amount (the "Liquidated Damages"): (A)(i) to each
holder of a Note that is a Notice Holder, accruing at a rate equal to
one-quarter of one percent per annum (25 basis points) on the aggregate
principal amount of Notes held by such
7.
Notice Holder and (ii) to each holder of Common Stock that is a Notice
Holder, accruing at a rate equal to one-quarter of one percent per annum (25
basis points) calculated on an amount equal to the product of (x) the
then-applicable Conversion Price (as defined in the Indenture), times (y) the
number of shares of Common Stock held by such holder; and (B) if the Damages
Accrual Period continues for a period in excess of thirty (30) days from the
Event Date, from and after the end of such thirty (30) days until such time
as there are no Events which have occurred and are continuing, (i) to each
holder of a Note (whether or not a Notice Holder), accruing at a rate equal
to one-quarter of one percent per annum (25 basis points) on the aggregate
principal amount of Notes held by such holder and (ii) to each holder of
Common Stock (whether or not a Notice Holder), accruing at a rate equal to
one-quarter of one percent per annum (25 basis points) calculated on an
amount equal to the product of (x) the then-applicable Conversion Price (as
defined in the Indenture), times (y) the number of shares of Common Stock
held by such holder. Notwithstanding the foregoing, no Liquidated Damages
shall accrue under clause (A) for the preceding sentence during any period
for which Liquidated Damages accrue under clause (B) of the preceding
sentence or as to any Registrable Securities from and after the earlier of
(x) the date such securities are no longer Registrable Securities, and (y)
the expiration of the Effectiveness Period. The rate of accrual of the
Liquidated Damages with respect to any period shall not exceed the rate
provided for in this paragraph notwithstanding the occurrence of multiple
concurrent Events.
The Company shall pay the Liquidated Damages due on any Notes or Common
Stock by depositing with the Trustee under the Indenture, in trust, for the
benefit of the holders of Notes or Common Stock or Notice Holder, as the case
may be, entitled thereto, on or prior to the applicable Damages Payment Date,
sums sufficient to pay the Liquidated Damages accrued or accruing since the
last preceding Damages Payment Date through such Damages Payment Date. The
Liquidated Damages shall be paid by the Company to the Record Holders on
each Damages Payment Date by wire transfer of immediately available funds to
the accounts specified by them or by mailing checks to their registered
addresses as they appear in the Note register (as defined in the Indenture),
in the case of the Notes, and in the register of the Company for the Common
Stock, in the case of the Common Stock, if no such accounts have been
specified on or before the Damage Payment Date; PROVIDED, HOWEVER, that any
Liquidated Damages accrued with respect to any Note or portion thereof called
for redemption on a redemption date, redeemed or repurchased in connection
with a Fundamental Change (as defined in the Indenture) on a repurchase date,
or converted into Common Stock on a conversion date prior to the Damages
Payment Date, shall, in any such event, be paid instead to the holder who
submitted such Note or portion thereof for redemption, repurchase or
conversion on the applicable redemption date, repurchase date or conversion
date, as the case may be, on such date (or promptly following the conversion
date, in the case of conversion of a Note). The Trustee shall be entitled, on
behalf of the holders of Notes, Common Stock and Notice Holder, to seek any
available remedy for the enforcement of this Agreement, including for the
payment of such Liquidated Damages. Notwithstanding the foregoing, the
parties agree that the sole damages payable for a violation of the terms of
this Agreement with respect to which Liquidated Damages are expressly
provided shall be such Liquidated Damages. Nothing shall preclude a Notice
Holder or holder of Registrable Securities from pursuing or obtaining
specific performance or other equitable relief
8.
with respect to this Agreement.
All of the Company's obligations set forth in this Section 2(e) which are
outstanding with respect to any Registrable Securities at the time such
security ceases to be a Registrable Security shall cease to accrue at such
time such security ceases to be a Registrable Security but shall survive
until such time as all such obligations with respect to such security have
been satisfied in full (notwithstanding termination of the Agreement pursuant
to Section 8(o)).
The parties hereto agree that the Liquidated Damages provided for in this
Section 2(e) constitute a reasonable estimate of the damages that may be
incurred by holders of Registrable Securities (other than the Initial
Purchasers) by reason of the failure of the Shelf Registration to be filed or
declared effective or unavailable (absolutely or as a practical matter) for
effecting resales of Registrable Securities, as the case may be, in
accordance with the provisions hereof.
3. REGISTRATION PROCEDURES. In connection with the Company's
registration obligations under Section 2 hereof, the Company shall effect
such registrations to permit the sale of the Registrable Securities in
accordance with the intended method or methods of disposition thereof, and
pursuant thereto the Company shall as expeditiously as possible:
(a) Prepare and file with the SEC a Registration Statement or
Registration Statements on any appropriate form under the Securities Act
available for the sale of the Registrable Securities by the Holders thereof
in accordance with the intended method or methods of distribution thereof,
and use its reasonable efforts to cause each such Registration Statement to
become effective and remain effective as provided herein; PROVIDED, that
before filing any such Registration Statement or Prospectus or any amendments
or supplements thereto (other than documents that would be incorporated or
deemed to be incorporated therein by reference and that the Company is
required by applicable securities laws or stock exchange requirements to
file) the Company shall furnish to the Manager, the Special Counsel and the
Managing Underwriters of such offering, if any, copies of all such documents
proposed to be filed, which documents will be subject to the review of the
Manager, the Special Counsel and such Managing Underwriters, and the Company
shall not file any such Registration Statement or amendment thereto or any
Prospectus or any supplement thereto (other than such documents which, upon
filing, would be incorporated or deemed to be incorporated by reference
therein and that the Company is required by applicable securities laws or
stock exchange requirements to file) to which the Holders of a majority of
the Registrable Securities covered by such Registration Statement, the
Initial Purchasers or the Special Counsel shall reasonably object in writing
within two full Business Days.
(b) Prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be necessary
to keep such Registration Statement continuously effective for the applicable
period specified in Section 2; cause the related Prospectus to be
supplemented by any required Prospectus supplement, and as so supplemented to
be filed pursuant to Rule 424 (or any similar provisions then in force) under
the Securities Act; and comply with the provisions of the Securities Act with
respect to the disposition of all
9.
securities covered by such Registration Statement during the applicable
period in accordance with the intended methods of disposition by the sellers
thereof set forth in such Registration Statement as so amended or such
Prospectus as so supplemented.
(c) Notify the Notice Holders, the Manager, the Special Counsel and
the Managing Underwriters, if any, promptly, and (if requested by any such
person) confirm such notice in writing, (i) when a Prospectus, any Prospectus
supplement, a Registration Statement or a post-effective amendment to a
Registration Statement has been filed with the SEC, and, with respect to a
Registration Statement or any post-effective amendment, when the same has
become effective, (ii) of any request by the SEC or any other federal or
state governmental authority for amendments or supplements to a Registration
Statement or related Prospectus or for additional information, (iii) of the
issuance by the SEC or any other federal or state governmental authority of
any stop order suspending the effectiveness of a Registration Statement or
the initiation or threatening of any proceedings for that purpose, (iv) of
the receipt by the Company of any notification with respect to the suspension
of the qualification or exemption from qualification of any of the
Registrable Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, (v) of the existence of any
fact or happening of any event which makes any statement of a material fact
in such Registration Statement or related Prospectus or any document
incorporated or deemed to be incorporated therein by reference untrue or
which would require the making of any changes in the Registration Statement
or Prospectus in order that, in the case of the Registration Statement, it
will not contain any 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 not misleading, and that in the case of the Prospectus, it
will not contain any 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 the light of the circumstances under which they were
made, not misleading, and (vi) of the Company's determination that a
post-effective amendment to a Registration Statement would be appropriate.
(d) Use its reasonable efforts to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement, or the
lifting of any suspension of the qualification (or exemption from
qualification) of any of the Registrable Securities for sale in any
jurisdiction, at the earliest possible moment.
(e) If reasonably requested by the Manager or the Managing
Underwriters, if any, or the Holders of a majority of the Registrable
Securities being sold, (i) promptly incorporate in a Prospectus supplement or
post-effective amendment to a Registration Statement such information as the
Manager, the Special Counsel, the Managing Underwriters, if any, or such
Holders, in connection with any offering of Registrable Securities, agree
should be included therein as required by applicable law, and (ii) make all
required filings of such Prospectus supplement or such post-effective
amendment as soon as practicable after the Company has received notification
of the matters to be incorporated in such Prospectus supplement or
post-effective amendment; PROVIDED, that the Company shall not be required to
take any actions under this Section 3(e) that are not, in the reasonable
opinion of counsel for the Company, in compliance with applicable law.
10.
(f) Furnish to each selling Holder (if so requested), the Special
Counsel and the Manager, and each Managing Underwriter, if any, without
charge, at least one conformed copy of the Registration Statement or
Statements and any amendment thereto, including financial statements but
excluding schedules, all documents incorporated or deemed to be incorporated
therein by reference and all exhibits (unless requested in writing by such
selling Holder, counsel, the Manager or underwriter).
(g) Deliver to each selling Holder, the Special Counsel and the
Manager and each Managing Underwriter, if any, in connection with any
offering of Registrable Securities, without charge, as many copies of the
Prospectus or Prospectuses relating to such Registrable Securities (including
each preliminary prospectus) and any amendment or supplement thereto as such
persons may reasonably request; and the Company hereby consents to the use of
such Prospectus or each amendment or supplement thereto by each of the
selling Holders of Registrable Securities and the Underwriters, if any, in
connection with any offering and sale of the Registrable Securities covered
by such Prospectus or any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities, to
register or qualify or cooperate with the selling Holders, the Managing
Underwriters, if any, and the Special Counsel in connection with the
registration or qualification (or exemption from such registration or
qualification) of such Registrable Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions within the United States as
any selling Holder or Managing Underwriter reasonably requests in writing;
keep each such registration or qualification (or exemption therefrom)
effective during the period such Registration Statement is required to be
kept effective and do any and all other acts or things necessary or advisable
to enable the disposition in such jurisdictions of the Registrable Securities
covered by the applicable Registration Statement; PROVIDED, that the Company
will not be required to (i) qualify generally to do business in any
jurisdiction where it is not then so qualified or (ii) take any action that
would subject it to general service of process in suits or to taxation in any
such jurisdiction where it is not then so subject.
(i) Cause the Registrable Securities covered by the applicable
Registration Statement to be registered with or approved by such other
governmental agencies or authorities within the United States, except as may
be required solely as a consequence of the nature of such selling Holder, in
which case the Company will cooperate in all reasonable respects with the
filing of such Registration Statement and the granting of such approvals, as
may be necessary to enable the selling Holder or Holders thereof or the
Managing Underwriters, if any, to consummate the disposition of such
Registrable Securities.
(j) During any Selling Period (other than during a Deferral
Period), immediately upon the existence of any fact or the occurrence of any
event as a result of which a Registration Statement shall contain any 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 not misleading,
or a Prospectus shall contain any untrue statement of a material fact or omit
to state
11.
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, promptly prepare and file a post-effective amendment to
each Registration Statement or a supplement to the related Prospectus or any
document incorporated therein by reference or file any other required
document (such as a Current Report on Form 8-K) that would be incorporated by
reference into the Registration Statement so that the Registration Statement
shall not contain any 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 not misleading, and so that the Prospectus will not
contain any untrue statement of a material fact or omit to state any material
fact or omit to state 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, as thereafter delivered to the
purchasers of the Registrable Securities being sold thereunder, and, in the
case of a post-effective amendment to a Registration Statement, use its
reasonable efforts to cause it to become effective as soon as practicable.
(k) In the event of an Underwritten Offering, enter into such
agreements and take all such other actions in connection therewith (including
those reasonably requested by the Managing Underwriters, if any, or the
Holders of a majority of the Registrable Securities being sold) in order to
expedite or facilitate the disposition of such Registrable Securities and in
such connection, whether or not an underwriting agreement is entered into,
and if the registration is an underwritten registration, (i) make such
representations and warranties, subject to the Company's ability to do so, to
the Holders of such Registrable Securities and the underwriters with respect
to the business of the Company and its subsidiaries, the Registration
Statement, Prospectus and documents incorporated by reference or deemed
incorporated by reference, if any, in each case, in form, substance and scope
as are customarily made by issuers to underwriters in underwritten offerings
and confirm the same if and when requested; (ii) use its reasonable efforts
to obtain opinions of counsel to the Company and updates thereof (which
counsel and opinions (in form, scope and substance) shall be reasonably
satisfactory to the Managing Underwriters, if any, Special Counsel and the
Holders of a majority of the Registrable Securities being sold) addressed to
each of the underwriters covering the matters customarily covered in opinions
requested in underwritten offerings and such other matters as may be
reasonably requested by such Special Counsel and Managing Underwriters; (iii)
use its reasonable efforts to obtain "cold comfort" letters and updates
thereof from the independent certified public accountants of the Company
(and, if necessary, any other certified public accountants of any subsidiary
of the Company or any business acquired or to be acquired by the Company for
which financial statements and financial data are, or are required to be,
included in the Registration Statement), addressed to each of the Managing
Underwriters, if any, such letters to be in customary form and covering
matters of the type customarily covered in "cold comfort" letters in
connection with Underwritten Offerings; and (iv) deliver such documents and
certificates as may be reasonably requested by the Holders of a majority of
the Registrable Securities being sold, the Special Counsel and the Managing
Underwriters, if any, to evidence the continued validity of the
representations and warranties of the Company and its subsidiaries made
pursuant to clause (i) above and to evidence compliance with any customary
conditions contained in the underwriting agreement or other agreement entered
into by the Company. The
12.
above shall be done at each closing under such underwriting or similar
agreement as and to the extent required thereunder.
(l) If requested in connection with a disposition of Registrable
Securities pursuant to a Registration Statement, make available for
inspection by a representative of the Holders of Registrable Securities being
sold, any Managing Underwriter participating in any disposition of
Registrable Securities, if any, and any attorney or accountant retained by
such selling holders or underwriter, financial and other records, pertinent
corporate documents and properties of the Company and its subsidiaries, and
cause the executive officers, directors and employees of the Company and its
subsidiaries to supply all information reasonably requested by any such
representative, Managing Underwriter, attorney or accountant in connection
with such disposition; subject to reasonable assurances by each such person
that such information will only be used in connection with matters relating
to such Registration Statement, PROVIDED, HOWEVER, that such persons shall
first agree in writing with the Company that any information that is
reasonably and in good faith designated by the Company in writing as
confidential at the time of delivery of such information shall be kept
confidential by such persons, unless (i) disclosure of such information is
required by court or administrative order or is necessary to respond to
inquiries of regulatory authorities, (ii) disclosure of such information is
required by law (including any disclosure requirements pursuant to Federal
securities laws in connection with the filing of any Registration Statement
or the use of any prospectus referred to in this Agreement), (iii) such
information becomes generally available to the public other than as a result
of a disclosure or failure to safeguard by any such person or (iv) such
information becomes available to any such person from a source other than the
Company and such source is not bound by a confidentiality agreement.
(m) Comply with all applicable rules and regulations of the SEC
and make generally available to its securityholders earning statements (which
need not be audited) satisfying the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder (or any similar rule promulgated under
the Securities Act) no later than 45 days after the end of any 12-month
period (or 90 days after the end of any 12-month period if such period is a
fiscal year) (i) commencing at the end of any fiscal quarter in which
Registrable Securities are sold to underwriters in a firm commitment or best
efforts underwritten offering and (ii) if not sold to underwriters in such an
offering, commencing on the first day of the first fiscal quarter of the
Company commencing after the effective date of a Registration Statement,
which statements shall cover said 12-month periods.
(n) Cooperate with the selling holders of Registrable Securities to
facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold and not bearing any restrictive legends;
and enable such Registrable Securities to be in such denominations and
registered in such names as the holders may request.
(o) Provide the transfer agent for the Common Stock with printed
certificates for the Registrable Securities which are in a form eligible for
deposit with The Depository Trust Company.
13.
(p) Cause all shares of Common Stock covered by the Registration
Statement to be listed on each securities exchange or quotation system on
which the Company's Common Stock is then listed no later than the date the
Registration Statement is declared effective and, in connection therewith, to
the extent applicable, to make such filings under the Exchange Act as may be
required and to have such filings declared effective thereunder.
(q) Cooperate and assist in any filings required to be made with
the National Association of Securities Dealers, Inc.
(r) Notwithstanding any provision of this Agreement to the
contrary, the Company shall not be required to amend or supplement the Shelf
Registration pursuant to the Agreement if (i) such amendment or supplement
would require the Company to disclose a material financing, acquisition or
corporate transaction and the Company shall have determined that such
disclosure is not in the best interests of the Company and the holders of its
outstanding Common Stock or (ii) the Company shall have determined in good
faith that there is a valid business purpose or reason for suspending the use
of the Prospectus included in such Shelf Registration in accordance herewith
instead of making such amendment or supplement; PROVIDED, that in each such
case the Company complies with its obligations, if any, to pay Liquidated
Damages.
4. HOLDER'S OBLIGATIONS. Each Holder agrees, by acquisition of the
Notes and Registrable Securities, that no Holder of Registrable Securities
shall be entitled to sell any of such Registrable Securities pursuant to a
Registration Statement or to receive a Prospectus relating thereto, unless
such Holder has furnished the Company with the Selling Securityholder
Questionnaire required pursuant to Section 2(a) hereof and the notice
required pursuant to Section 2(d) hereof and such other information regarding
such Holder and the distribution of such Registrable Securities as may be
required to be included in the Registration Statement or the Prospectus or as
the Company may from time to time reasonably request. The Company may
exclude from such registration the Registrable Securities of any Holder who
does not furnish such information provided above for so long as such
information is not so furnished. Each Holder of Registrable Securities as to
which any Registration Statement is being effected agrees promptly to furnish
to the Company all information required to be disclosed in order to make the
information previously furnished to the Company by such Holder not
misleading. Any sale of any Registrable Securities by any Holder shall
constitute a representation and warranty by such Holder that the information
relating to such Holder and its plan of distribution is as set forth in the
Prospectus delivered by such Holder in connection with such disposition, that
such Prospectus does not as of the time of such sale contain any untrue
statement of a material fact relating to such Holder or its plan of
distribution and that such Prospectus does not as of the time of such sale
omit to state any material fact relating to such Holder or its plan of
distribution necessary to make the statements in such Prospectus, in light of
the circumstances under which they were made, not misleading.
5. REGISTRATION EXPENSES. All fees and expenses incident to the
Company's
14.
performance of or compliance with this Agreement shall be borne by the
Company whether or not any of the Registration Statements become effective.
Such fees and expenses shall include, without limitation, (i) all
registration and filing fees (including, without limitation, fees and
expenses (x) with respect to filings required to be made with the National
Association of Securities Dealers, Inc. and (y) of compliance with federal
securities or Blue Sky laws (including, without limitation, fees and
disbursements of Special Counsel in connection with Blue Sky qualifications
of the Registrable Securities in such jurisdictions as the Managing
Underwriters, if any, or Holders of a majority of the Registrable Securities
being sold may designate)), (ii) printing expenses (including, without
limitation, expenses of printing certificates for Registrable Securities in a
form eligible for deposit with The Depository Trust Company and of printing
prospectuses if the printing of prospectuses is requested by the Special
Counsel or the holders of a majority of the Registrable Securities included
in any Registration Statement), (iii) messenger, telephone and delivery
expenses, (iv) reasonable fees and disbursements of counsel for the Company
and the Special Counsel (not to exceed $5,000) in connection with the Shelf
Registration (provided that the Company shall not be liable for the fees and
expenses of more than one separate firm for all parties participating in any
transaction hereunder), (v) fees and disbursements of all independent
certified public accountants referred to in Section 3(k)(iii) hereof
(including the expenses of any special audit and "cold comfort" letters
required by or incident to such performance) and (vi) Securities Act
liability insurance obtained by the Company in its sole discretion. In
addition, the Company shall pay its internal expenses (including, without
limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expense of any annual audit, the
fees and expenses incurred in connection with the listing of the securities
to be registered on any securities exchange on which similar securities
issued by the Company are then listed and the fees and expenses of any
person, including special experts, retained by the Company. Notwithstanding
the provisions of this Section 5, each seller of Registrable Securities shall
pay all selling expenses and all registration expenses to the extent that the
Company is prohibited by applicable Blue Sky laws from paying for or on
behalf of such seller of Registrable Securities, and the Managing
Underwriters shall pay the fees of their counsel in connection with any
Underwritten Offering (other than Blue Sky qualifications).
6. INDEMNIFICATION.
(a) INDEMNIFICATION BY THE COMPANY. The Company shall indemnify
and hold harmless each Initial Purchaser, each Holder and each person, if
any, who controls the Initial Purchasers or any Holder (within the meaning of
either Section 15 of the Securities Act or Section 20(a) of the Exchange Act)
from and against all losses, liabilities, damages and expenses (including,
without limitation, any legal or other expenses reasonably incurred in
connection with defending or investigating any such action or claim)
(collectively, "Losses"), caused by any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement or
Prospectus or in any amendment or supplement thereto or in any preliminary
prospectus, or caused by any 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 in which they were made not
misleading, except insofar as such Losses are caused
15.
by the information furnished to the Company in writing by the Initial
Purchasers or such Holder expressly for use therein; PROVIDED, that the
Company shall not be liable to any Holder of Registrable Securities (or any
person controlling such Holder) to the extent that any such Losses are caused
by an untrue statement or alleged untrue statement or omission or alleged
omission made in any preliminary prospectus if either (A)(i) such Holder
failed to send or deliver a copy of the Prospectus with or prior to the
delivery of written confirmation of the sale by such Holder to the person
asserting the claims from which such Losses result and (ii) the Prospectus
would have corrected such untrue statement or alleged untrue statement or
such omission or alleged omission, (B)(x) such untrue statement or alleged
untrue statement, omission or alleged omission is corrected in an amendment
or supplement to the Prospectus and (y) having previously been furnished by
or on behalf of the Company with copies of the Prospectus as so amended or
supplemented, such holder thereafter fails to deliver such Prospectus as so
amended or supplemented, with or prior to the delivery of written
confirmation of the sale of a Registrable Security to the person asserting
the claim from which such Losses result or (C) such Holder effected
transactions pursuant to a Registration Statement or Prospectus during any
suspension or delay of a Selling Period in accordance with Section 2(d)(ii)
hereof. The Company shall also indemnify each underwriter and each person
who controls such person (within the meaning of Section 15 of the Securities
Act or Section 20(a) of the Exchange Act) to the same extent and with the
same limitations as provided above with respect to the indemnification of the
Initial Purchasers or the holders of Registrable Securities.
(b) INDEMNIFICATION BY HOLDER OF REGISTRABLE SECURITIES. Each
Holder agrees, and such agreement shall be evidenced by the Holder delivering
the notice described in Section 2(d) hereof, severally and not jointly to
indemnify and hold harmless the Initial Purchasers, the other selling
Holders, the Company, its directors, its officers who sign a Registration
Statement, and each person, if any, who controls the Company, the Initial
Purchasers and any other selling Holder (within the meaning of either Section
15 of the Securities Act or Section 20 of the Exchange Act), from and against
all losses arising out of or based upon any untrue statement of a material
fact contained in any Registration Statement, Prospectus or preliminary
prospectus or arising out of or based upon any omission of a material fact
required to be stated therein or necessary to make the statements therein not
misleading, to the extent, but only to the extent, that such untrue statement
or omission is contained in any information relating to such Holder so
furnished in writing by such Holder to the Company expressly for use in such
Registration Statement or Prospectus. In no event shall the liability of any
selling holder of Registrable Securities hereunder be greater in amount than
the dollar amount of the proceeds received by such holder upon the sale of
the Registrable Securities giving rise to such indemnification obligation.
(c) CONDUCT OF INDEMNIFICATION PROCEEDINGS. In case any proceeding
(including any governmental investigation) shall be instituted involving any
person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such person (the "indemnified party") shall
promptly notify the person against whom such indemnity may be sought (the
"indemnifying party") in writing and the indemnifying party, upon request of
the indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to
16.
represent the indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the reasonable fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and
representation of both parties by the same counsel would be inappropriate due
to actual or potential differing interests between them. It is understood
that the indemnifying party shall not, in respect of the legal expenses of
any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for (a) the fees and expenses
of more than one separate firm (in addition to any local counsel) for the
Initial Purchasers and all persons, if any, who control the Initial
Purchasers within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, (b) the fees and expenses of more than one
separate firm (in addition to any local counsel) for all Holders and all
persons, if any, who control any Holder within the meaning of either Section
15 of the Securities Act or Section 20 of the Exchange Act, and (c) the fees
and expenses of more than one separate firm (in addition to any local
counsel) for the Company, its directors, its officers who sign a Registration
Statement and each person, if any, who controls the Company within the
meaning of either such Section, and that all such fees and expenses shall be
reimbursed as they are incurred. In the case of any such separate firm for
the Company, and such directors, officers and control persons of the Company,
such firm shall be designated in writing by the Company. In such case
involving the Initial Purchasers and persons who control the Initial
Purchasers, such firm shall be designated in writing by Deutsche Morgan
Grenfell Inc. In such case involving the Holders and such persons who
control Holders, such firm shall be designated in writing by the holders of
the majority of Registrable Securities sold pursuant to the Registration
Statement. The indemnifying party shall not be liable for any settlement of
any proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes
an unconditional release of such indemnified party from all liability on
claims that are the subject matter of such proceeding.
(d) CONTRIBUTION. If the indemnification provided for in this
Section 6 is unavailable to an indemnified party under Section 6(a) or 6(b)
hereof in respect of any Losses or is insufficient to hold such indemnified
party harmless, then each applicable indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such Losses, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
indemnifying party or parties on the one hand and the indemnified party or
parties on the other hand or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the
17.
indemnifying party or parties on the one hand and of the indemnified party or
parties on the other hand in connection with the statements or omissions that
resulted in such Losses, as well as any other relevant equitable
considerations. Benefits received by the Company shall be deemed to be equal
to the total net proceeds from the initial placement (before deducting
expenses) of the Notes pursuant to the Purchase Agreement. Benefits received
by the Initial Purchasers shall be deemed to be equal to the total purchase
discounts and commissions received by it pursuant to the Purchase Agreement,
and benefits received by any other Holders shall be deemed to be equal to the
value of receiving Notes registered under the Securities Act. Benefits
received by any underwriter shall be deemed to be equal to the total
underwriting discounts and commissions, as set forth on the cover page of the
Prospectus forming a part of the Registration Statement which resulted in
such Losses. The relative fault of the Holders on the one hand and the
Company on the other hand shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to
information supplied by the Holders or by the Company and the parties'
relative intent, knowledge, access to information and opportunity to correct
or prevent such statement or omission. The Holders' respective obligations
to contribute pursuant to this paragraph are several in proportion to the
respective number of Registrable Securities they have sold pursuant to a
Registration Statement, and not joint.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 6(d) were determined by PRO RATA
allocation or by any other method or allocation that does not take into
account the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of
the Losses referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any reasonable legal
or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim. Notwithstanding
this Section 6(d), an indemnifying party that is a selling Holder of
Registrable Securities shall not be required to contribute any amount in
excess of the amount by which the total price at which the Registrable
Securities sold by such indemnifying party and distributed to the public were
offered to the public exceeds the amount of any damages which such
indemnifying party 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 misrepresentation.
The indemnity, contribution and expense reimbursement obligations of the
Company hereunder shall be in addition to any liability the Company may
otherwise have hereunder, under the Purchase Agreement or otherwise. The
provisions of this Section 6 shall survive so long as Registrable Securities
remain outstanding, notwithstanding any transfer of the Registrable
Securities by any holder or any termination of this Agreement.
The indemnity and contribution provisions contained in this Section 6
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
the Initial Purchasers, any Holder or any person
18.
controlling any Holder, or the Company, its officers or directors or any
person controlling the Company and (iii) the sale of any Registrable
Securities by any Holder.
7. INFORMATION REQUIREMENTS.
(a) The Company shall file the reports required to be filed by it
under the Securities Act and the Exchange Act, and if at any time the Company
is not required to file such reports, it will, upon the request of any holder
of Registrable Securities, make publicly available other information so long
as necessary to permit sales pursuant to Rule 144 and Rule 144A under the
Securities Act. The Company further covenants that it will cooperate with
any holder of Registrable Securities and take such further reasonable action
as any holder of Registrable Securities may reasonably request (including,
without limitation making such reasonable representations as any such holder
may reasonably request), all to the extent required from time to time to
enable such holder to sell Registrable Securities without registration under
the Securities Act within the limitation of the exemptions provided by Rule
144 and Rule 144A under the Securities Act. Upon the request of any holder
of Registrable Securities, the Company shall deliver to such holder a written
statement as to whether it has complied with such filing requirements.
Notwithstanding the foregoing, nothing in this Section 7 shall be deemed to
require the Company to register any of its securities under any section of
the Exchange Act.
(b) The Company shall file the reports required to be filed by it
under the Exchange Act and shall comply with all other requirements set forth
in the instructions to Form S-3 in order to allow the Company to be eligible
to file registration statements on Form S-3.
8. MISCELLANEOUS.
(a) REMEDIES. In the event of a breach by the Company of its
obligations under this Agreement, each holder of Registrable Securities, in
addition to being entitled to exercise all rights granted by law, including
recovery of damages, will be entitled to specific performance of its rights
under this Agreement, provided that the sole damages payable for a violation
of the terms of this Agreement for which Liquidated Damages are expressly
provided pursuant to Section 2(e) hereof shall be such Liquidated Damages.
The Company agrees that monetary damages would not be adequate compensation
for any loss incurred by reason of a breach by it of any of the provisions of
this Agreement and hereby further agrees that, in the event of any action for
specific performance in respect of such breach, it shall waive the defense
that a remedy at law would be adequate.
(b) NO CONFLICTING AGREEMENTS. The Company has not, as of the date
hereof and shall not, on or after the date of this Agreement, enter into any
agreement with respect to its securities which conflicts with the rights
granted to the holders of Registrable Securities in this Agreement. The
Company represents and warrants that the rights granted to the holders of
Registrable Securities hereunder do not in any way conflict with the rights
granted to the holders of the Company's securities under any other agreements.
19.
(c) AMENDMENTS AND WAIVERS. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions
hereof may not be given, unless the Company has obtained the written consent
of holders of a majority of the then outstanding Common Stock constituting
Registrable Securities (with holders of Notes deemed to be the holders, for
purposes of this Section, of the number of outstanding shares of Common Stock
into which such Notes are convertible). Notwithstanding the foregoing, a
waiver or consent to depart from the provisions hereof with respect to a
matter that relates exclusively to the rights of holders of Registrable
Securities whose securities are being sold pursuant to a Registration
Statement and that does not directly or indirectly affect the rights of other
holders of Registrable Securities may be given by holders of at least a
majority of the Registrable Securities being sold by such holders; PROVIDED,
that the provisions of this sentence may not be amended, modified, or
supplemented except in accordance with the provisions of the immediately
preceding sentence.
(d) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing and shall be deemed given (i)
when made, if made by hand delivery, (ii) upon confirmation, if made by
telecopier or (iii) one business day after being deposited with a reputable
next-day courier, postage prepaid, to the parties as follows:
(w) if to a holder of Registrable Securities, at the most
current address given by such holder to the Company in accordance with the
provisions of Section 8(e);
(x) if to the Company, to:
Wind River Systems, Inc.
1010 Atlantic Avenue
Alameda, CA 94501
Attention: Corporate Counsel
Telecopy No.: (510) 749-2526
with a copy to:
Cooley Godward LLP
Five Palo Alto Square, 3000 El Camino Real
Palo Alto, California 94306-2155
Attention: Andrea Vachss
Telecopy No.: (415) 857-0663
(y) if to the Special Counsel to:
Venture Law Group
A Professional Corporation
2800 Sand Hill Road
Menlo Park, CA 94025
20.
Attention: Joshua L. Green
Telecopy No.: (415) 854-1121
and
(z) if to the Manager to:
Deutsche Morgan Grenfell Inc.
31 West 52nd Street
New York, NY 10019
Attention: Thomas Curtis, Esq.
Telecopy No.: (212) 469-8560
or to such other address as such person may have furnished to the other
persons identified in this Section 8(d) in writing in accordance herewith.
(e) OWNER OF REGISTRABLE SECURITIES. The Company will maintain, or
will cause its registrar and transfer agent to maintain, a register with
respect to the Registrable Securities in which all transfers of Registrable
Securities of which the Company has received notice will be recorded. The
Company may deem and treat the person in whose name Registrable Securities
are registered in such register of the Company as the owner thereof for all
purposes, including, without limitation, the giving of notices under this
Agreement.
(f) APPROVAL OF HOLDERS. Whenever the consent or approval of
holders of a specified percentage of Registrable Securities is required
hereunder, Registrable Securities held by the Company or its affiliates (as
such term is defined in Rule 405 under the Securities Act) (other than the
Initial Purchasers or subsequent holders of Registrable Securities if such
subsequent holders are deemed to be such affiliates solely by reason of their
holdings of such Registrable Securities) shall not be counted in determining
whether such consent or approval was given by the holders of such required
percentage.
(g) SUCCESSORS AND ASSIGNS. Any person who purchases any
Registerable Securities from an Initial Purchaser shall be deemed, for
purposes of this Agreement, to be an assignee of such Initial Purchaser. The
Agreement shall inure to the benefit of and be binding upon the successors
and assigns of each of the parties and shall inure to the benefit of and be
binding upon each holder of any Registrable Securities.
(h) 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 original and all of which taken
together shall constitute one and the same agreement.
(i) HEADINGS. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
21.
(j) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK WITHOUT REGARD TO
PRINCIPLES OF CONFLICT OF LAWS.
(k) SEVERABILITY. If any term, provision, covenant or restriction
of this Agreement is held to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth
herein shall remain in full force and effect and shall in no way be affected,
impaired or invalidated thereby, and the parties hereto shall use their best
efforts to find and employ an alternative means to achieve the same or
substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the
intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such which
may be hereafter declared invalid, illegal void or unenforceable.
(l) ENTIRE AGREEMENT. This Agreement is intended by the parties as
a final expression of their agreement and is 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 and the registration rights
granted by the Company with respect to the Common Stock of the Company into
which Notes are convertible sold pursuant to the Purchase Agreement. Except
as provided in the Purchase Agreement, 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 Common Stock of the Company to which the Notes are convertible. This
Agreement supersedes all prior agreements and understandings among the
parties with respect to such registration rights.
(m) ATTORNEYS' FEES. In any action or proceeding brought to
enforce provision of this Agreement, or where any provision hereof is validly
asserted as a defense, the prevailing party, as determined by the court,
shall be entitled to recover reasonable attorneys' fees in addition to any
other available remedy.
(n) FURTHER ASSURANCES. Each of the parties hereto shall use all
reasonable efforts to take, or cause to be taken, all appropriate action, do
or cause to be done all things reasonably necessary, proper or advisable
under applicable law, and execute and deliver such documents and other
papers, as may be required to carry out the provisions of this Agreement and
the other documents contemplated hereby and consummate and make effective the
transactions contemplated hereby.
(o) TERMINATION. This Agreement and the obligations of the parties
hereunder shall terminate upon the end of the Effectiveness Period, except
for any liabilities or obligations under Sections 4, 5 or 6 hereof and the
obligations to make payments of and provide for Liquidated Damages under
Section 2(e) hereof to the extent such damages accrue prior to the end of the
Effectiveness Period, each which shall remain in effect in accordance with
their terms.
22.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
WIND RIVER SYSTEMS, INC.
By:
-------------------------------
Name:
Title:
Accepted as of the date first above written:
By: DEUTSCHE MORGAN GRENFELL INC.
Acting severally on behalf of itself and the
several Initial Purchasers named in the first
paragraph of the Agreement
By:
----------------------------
Name: John Hodge
Title: Managing Director
23.