REGISTRATION RIGHTS AGREEMENT
DATED AS OF SEPTEMBER 24, 2004
BETWEEN
ANADIGICS, INC.
AND
MORGAN STANLEY & CO. INCORPORATED,
AS THE INITIAL PURCHASER
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REGISTRATION RIGHTS AGREEMENT (the "Agreement") dated as of September
24, 2004 between ANADIGICS, Inc., a Delaware corporation (the "COMPANY"), and
Morgan Stanley & Co. Incorporated, as the Initial Purchaser (the "INITIAL
PURCHASER") to the Purchase Agreement dated September 20, 2004 (the "PURCHASE
AGREEMENT") with the Company. In order to induce the Initial Purchaser 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 Purchaser, (i) for its benefit as
Initial Purchaser and (ii) for the benefit of the beneficial owners (including
the Initial Purchaser) from time to time of the Securities (as defined herein)
and the beneficial owners from time to time of the Underlying Common Stock (as
defined herein) issued upon conversion of the Securities (each of the foregoing
a "HOLDER" and together the "HOLDERS"), as follows:
SECTION 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" means with respect to any specified person, an "affiliate,"
as defined in Rule 144, of such person.
"AMENDMENT EFFECTIVENESS DEADLINE" has the meaning set forth in Section
2(d) hereof.
"BUSINESS DAY" means any day, except a Saturday, Sunday or legal
holiday on which banking institutions in The City of New York are authorized or
obligated by law or executive order to close.
"COMMON STOCK" means the shares of common stock, $0.01 par value per
share, of the Company, together with the Rights evidenced by such common stock
to the extent provided in the Rights Agreement (as defined herein), and any
other shares of common stock as may constitute "Common Stock" for purposes of
the Indenture, including the Underlying Common Stock.
"CONVERSION PRICE" has the meaning assigned to such term in the
Indenture.
"DEFERRAL NOTICE" has the meaning set forth in Section 3(h) hereof.
"DEFERRAL PERIOD" has the meaning set forth in Section 3(h) hereof.
"EFFECTIVENESS DEADLINE" has the meaning set forth in Section 2(a)
hereof.
"EFFECTIVENESS PERIOD" means the period commencing on the first date
that an initial Shelf Registration Statement (excluding any post-effective
amendments thereto) is declared effective under the Securities Act hereof and
ending on the earlier of (1) the date that all Securities and the Underlying
Common Stock have ceased to be Registrable Securities or (2) the second
anniversary of the last date on which the Securities were originally issued.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC promulgated thereunder.
"FILING DEADLINE" has the meaning set forth in Section 2(a) hereof.
"HOLDER" has the meaning set forth in the second paragraph of this
Agreement.
"INDENTURE" means the Indenture dated as of September 24, 2004 between
the Company and U.S. Bank Trust National Association, as trustee, pursuant to
which the Securities are being issued.
"INITIAL PURCHASER" means Morgan Stanley & Co. Incorporated.
"INTEREST PAYMENT DATE" means each April 15 and October 15, beginning
April 15, 2005.
"ISSUE DATE" means the first date of original issuance of the
Securities.
"LIQUIDATED DAMAGES AMOUNT" has the meaning set forth in Section 2(e)
hereof.
"MATERIAL EVENT" has the meaning set forth in Section 3(h) hereof.
"NOTICE AND QUESTIONNAIRE" means a written notice delivered to the
Company containing substantially the information called for by the Selling
Securityholder Notice and Questionnaire attached as Annex A to the Offering
Memorandum of the Company dated September 20, 2004 relating to the Securities.
"NOTICE HOLDER" means, on any date, any Holder that has delivered a
Notice and Questionnaire to the Company on or prior to such date.
"PROSPECTUS" means a prospectus relating to a Shelf Registration
Statement, as amended or supplemented, and all materials incorporated by
reference in such Prospectus.
"PURCHASE AGREEMENT" has the meaning set forth in the preamble hereof.
"RECORD HOLDER" means with respect to any Interest Payment Date
relating to any Securities or Underlying Common Stock as to which any
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Liquidated Damages Amount has accrued, the registered holder of such Security or
Underlying Common Stock on the April 1 or October 1 immediately preceding the
Interest Payment Date.
"REGISTRABLE SECURITIES" means the Securities until such Securities
have been converted into the Underlying Common Stock and, at all times
subsequent to any such conversion, the Underlying Common Stock and any
securities into or for which such Underlying Common Stock has been converted or
exchanged, and any security issued with respect thereto upon any stock dividend,
split or similar event until, in the case of any such security, (A) the earliest
of (i) its effective registration under the Securities Act and resale in
accordance with a Shelf Registration Statement, (ii) expiration of the holding
period that would be applicable thereto under Rule 144(k) (or any successor or
similar provision then in effect) or (iii) its sale to the public pursuant to
Rule 144 (or any successor or similar provision then in effect, but not Rule
144A) under the Securities Act, and (B) as a result of the event or circumstance
described in any of the foregoing clauses (i) through (iii), the legend with
respect to transfer restrictions required under the Indenture is removed or
removable in accordance with the terms of the Indenture or such legend, as the
case may be.
"REGISTRATION DEFAULT" has the meaning set forth in Section 2(e)
hereof.
"REGISTRATION DEFAULT PERIOD" has the meaning set forth in Section 2(e)
hereof.
"RIGHTS AGREEMENT" means the Rights Agreement dated December 17, 1998
between the Company and Mellon Investor Services LLC (formerly known as Chase
Mellon Shareholder Services L.L.C.), as rights agent.
"RULE 144" means 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" means 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" means the Securities and Exchange Commission.
"SECURITIES" means the 5.00% Convertible Senior Notes Due 2009 of the
Company to be purchased pursuant to the Purchase Agreement, including any
Securities purchased by the Initial Purchaser upon exercise of its option to
purchase additional Securities.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated by the SEC thereunder.
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"SHELF REGISTRATION STATEMENT" has the meaning set forth in Section
2(a) hereof, including amendments to such registration statement, all exhibits
and all materials incorporated by reference in such registration statement.
"SPECIAL COUNSEL" means such counsel as shall be specified by the
Holders of a majority of the Registrable Securities covered by the applicable
Shelf Registration Statement.
"TRUSTEE" means U.S. Bank Trust National Association in its capacity as
the trustee and its successors as defined under the Indenture.
"UNDERLYING COMMON STOCK" means the Common Stock into which the
Securities are convertible or issued upon any such conversion.
SECTION 2. SHELF REGISTRATION. The Company shall prepare and file or
cause to be prepared and filed with the SEC, as soon as practicable but in any
event by the date (the "FILING DEADLINE") 90 days after the Issue Date, a
registration statement for an offering to be made on a delayed or continuous
basis pursuant to Rule 415 of the Securities Act registering the resale from
time to time by Holders of the Registrable Securities (a "SHELF REGISTRATION
STATEMENT") (excluding any amendments thereto). The Shelf Registration Statement
shall be on Form S-3 or another appropriate form permitting registration of the
Registrable Securities for resale by the Holders in accordance with the methods
of distribution elected by the Holders and set forth in the Shelf Registration
Statement; provided that in no event will such methods of distribution take the
form of an underwritten offering of the Registrable Securities without the prior
agreement of the Company. The Company shall use its reasonable best efforts (i)
to cause an initial Shelf Registration Statement (excluding any post-effective
amendments thereto) to be declared effective under the Securities Act as
promptly as is practicable but in any event by the date (the "EFFECTIVENESS
DEADLINE") that is 180 days after the Issue Date, and (ii) to keep a Shelf
Registration Statement continuously effective under the Securities Act until the
expiration of the Effectiveness Period. Each Holder that becomes a Notice Holder
on or prior to the date ten Business Days prior to the initial Shelf
Registration Statement is declared effective shall be named as a selling
securityholder in the initial Shelf Registration Statement and the related
Prospectus in such a manner as to permit such Holder to deliver the Prospectus
to purchasers of Registrable Securities in accordance with applicable law. None
of the Company's security holders (other than the Holders) shall have the right
to include any of the Company's securities in a Shelf Registration Statement;
except as required pursuant to the registration rights agreement by and between
the Company and R.F. Solutions, Inc., dated as of March 31, 2003.
(b) If a Shelf Registration Statement covering resales of the
Registrable Securities ceases to be effective for any reason at any time during
the Effectiveness Period (other than because all Registrable Securities
registered thereunder shall have been resold pursuant thereto or shall have
otherwise ceased to be Registrable Securities), the Company shall use its
reasonable best efforts to
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obtain the prompt withdrawal of any order suspending the effectiveness thereof,
and in any event shall within 30 days of such cessation of effectiveness amend
the Shelf Registration Statement in a manner reasonably expected to obtain the
withdrawal of the order suspending the effectiveness thereof, or file an
additional Shelf Registration Statement so that all Registrable Securities
outstanding as of the date of such filing are covered by a Shelf Registration
Statement. If a new Shelf Registration Statement is filed, the Company shall use
its reasonable best efforts to cause the new Shelf Registration Statement to
become effective as promptly as is practicable after such filing and to keep the
new Shelf Registration Statement continuously effective until the end of the
Effectiveness Period.
(c) The Company shall amend and supplement the Prospectus and the
Shelf Registration Statement if required by the rules, regulations or
instructions applicable to the registration form used by the Company for such
Shelf Registration Statement or file a new Shelf Registration Statement, if
required by the Securities Act, or any other documents necessary to name a
Notice Holder as a selling securityholder pursuant to Section 2(d) below.
(d) Each Holder may sell Registrable Securities pursuant to a
Shelf Registration Statement and related Prospectus only in accordance with this
Section 2(d) and Section 3(h). Each Holder wishing to sell Registrable
Securities pursuant to a Shelf Registration Statement and related Prospectus
shall deliver a Notice and Questionnaire to the Company prior to any intended
distribution of Registrable Securities under the Shelf Registration Statement.
From and after the date the initial Shelf Registration Statement is declared
effective, the Company shall, as promptly as practicable after the date a Notice
and Questionnaire is delivered, and in any event upon the later of (x) 15
Business Days after such date or (y) 15 Business Days after the expiration of
any Deferral Period in effect when the Notice and Questionnaire is delivered or
put into effect within 15 Business Days of such delivery date:
(i) if required by applicable law, file with the SEC a
post-effective amendment to the Shelf Registration Statement or prepare
and, if required by applicable law, file a supplement to the related
Prospectus or a supplement or amendment to any document incorporated
therein by reference or file a new Shelf Registration Statement
(excluding any amendments thereto) or any other document required by
applicable law so that the Holder delivering such Notice and
Questionnaire is named as a selling securityholder in a Shelf
Registration Statement and the related Prospectus in such a manner as
to permit such Holder to deliver such Prospectus to purchasers of the
Registrable Securities in accordance with applicable law and, if the
Company shall file a post-effective amendment to a Shelf Registration
Statement or shall file a new Shelf Registration Statement, the Company
shall use its reasonable best efforts to cause such post-effective
amendment or new Shelf Registration Statement (excluding any
post-effective amendments thereto) to be declared effective under the
Securities Act as promptly as is practicable, but in any event by the
date
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(the "AMENDMENT EFFECTIVENESS DEADLINE") that is 45 days after the date
such post-effective amendment or new Shelf Registration Statement
(excluding any post-effective amendments thereto) is required by this
clause to be filed;
(ii) upon request, provide such Holder copies of any
documents filed pursuant to Section 2(d)(i); and
(iii) notify such Holder as promptly as practicable after
the effectiveness under the Securities Act of any new Shelf
Registration Statement or post-effective amendment filed pursuant to
Section 2(d)(i);
PROVIDED that if such Notice and Questionnaire is delivered during a Deferral
Period, the Company shall so inform the Holder delivering such Notice and
Questionnaire and shall take the actions set forth in clauses (i), (ii) and
(iii) above upon expiration of the Deferral Period in accordance with Section
3(h). Notwithstanding anything contained herein to the contrary, (i) the Company
shall be under no obligation to name any Holder that is not a Notice Holder as a
selling securityholder in any Shelf Registration Statement or related Prospectus
and (ii) the Amendment Effectiveness Deadline shall be extended by up to ten
Business Days from the expiration of a Deferral Period (and the Company shall
incur no obligation to pay any Liquidated Damages Amount during such extension)
if such Deferral Period shall be in effect on the Amendment Effectiveness
Deadline.
(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) an initial Shelf Registration Statement (excluding
any amendments thereto) has not been filed on or prior to the Filing
Deadline,
(ii) an initial Shelf Registration Statement (excluding
any post-effective amendments thereto) has not been declared effective
under the Securities Act on or prior to the Effectiveness Deadline,
(iii) the Company has failed to perform its obligations set
forth in Section 2(d)(i) within the time period required therein,
(iv) a new Shelf Registration Statement (excluding any
post-effective amendments thereto) or a post-effective amendment to a
Shelf Registration Statement filed pursuant to Section 2(d)(i) has not
become effective under the Securities Act on or prior to the Amendment
Effectiveness Deadline,
(v) the aggregate duration of Deferral Periods in any
period exceeds the number of days permitted in respect of such period
pursuant to Section 3(h) hereof, or
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(vi) the number of Deferral Periods in any period exceeds
the number permitted in respect of such period pursuant to Section 3(h)
hereof.
Each event described in any of the foregoing clauses (i) through (vi) is
individually referred to herein as a "REGISTRATION DEFAULT." For purposes of
this Agreement, each Registration Default set forth above shall begin and end on
the dates set forth in the table set forth below:
Type of
Registration
Default by
Clause Beginning Date Ending Date
- ------------ ----------------------------------------- -------------------------------------------
(i) Filing Deadline the date an initial Shelf Registration
Statement (excluding any amendments
thereto) is filed
(ii) Effectiveness Deadline the date an initial Shelf Registration
Statement (excluding any post-effective
amendments thereto) becomes effective under
the Securities Act
(iii) the date by which the Company is required the date the Company performs its
to perform its obligations under Section obligations set forth in Section 2(d)(i)
2(d)(i)
(iv) the Amendment Effectiveness Deadline the date the applicable post-effective
amendment to a Shelf Registration Statement
or a new Shelf Registration Statement
(excluding any post-effective amendments
thereto) becomes effective under the
Securities Act
(v) the date on which the aggregate duration termination of the Deferral Period that
of Deferral Periods in any period exceeds caused the limit on the aggregate duration
the number of days permitted by Section of Deferral Periods to be exceeded
3(h)
(vi) the date of commencement of a Deferral termination of the Deferral Period that
Period that causes the number of Deferral caused the number of Deferral Periods to
Periods to exceed the number permitted by exceed the number permitted by Section 3(h)
Section 3(h)
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Commencing on (and including) any date that a Registration Default has
begun and ending on (but excluding) the next date on which there are no
Registration Defaults that have occurred and are continuing (a "REGISTRATION
DEFAULT PERIOD"), the Company shall pay to Record Holders of Registrable
Securities in respect of each day in the Registration Default Period, liquidated
damages (i) in respect of any Security then outstanding, at a rate per annum
equal to 0.25% for the first 90-day period after a Registration Default and
0.50% thereafter of the aggregate principal amount of such Security and (ii) in
respect of each share of Underlying Common Stock then outstanding at a rate per
annum equal to 0.25% for the first 90-day period after a Registration Default
and 0.50% thereafter of the Conversion Price on such date (each, a "LIQUIDATED
DAMAGES AMOUNT"), as the case may be; PROVIDED that in the case of a
Registration Default Period that is in effect solely as a result of a
Registration Default of the type described in clause (iii) or (iv) of the
preceding paragraph, such Liquidated Damages Amount, as applicable, shall be
paid only to the Holders (as set forth in the succeeding paragraph) that have
delivered Notices and Questionnaires that caused the Company to incur the
obligations set forth in Section 2(d) the non-performance of which is the basis
of such Registration Default. In calculating the Liquidated Damages Amount on
shares of Underlying Common Stock on any date on which no Securities are
outstanding, the Conversion Price used shall be based on the Conversion Price
that would be in effect if the Securities were still outstanding.
Notwithstanding the foregoing, no Liquidated Damages Amount shall accrue as to
any Registrable Security from and after the earlier of (x) the date such
security is no longer a Registrable Security and (y) expiration of the
Effectiveness Period. The rate of accrual of the Liquidated Damages Amount, with
respect to any period shall not exceed the rate provided for in this paragraph
notwithstanding the occurrence of multiple concurrent Registration Defaults.
The Liquidated Damages Amount, shall accrue from the first day of the
applicable Registration Default Period, and shall be payable on each Interest
Payment Date during the Registration Default Period (and on the Interest Payment
Date next succeeding the end of the Registration Default Period if the
Registration Default Period does not end on a Interest Payment Date) to the
Record Holders of the Registrable Securities entitled thereto; PROVIDED that any
Liquidated Damages Amount, accrued with respect to any Security or portion
thereof purchased by the Company on a repurchase date or converted into
Underlying Common Stock on a conversion date prior to the Interest Payment Date,
shall, in any such event, be paid instead to the Holder who submitted such
Security or portion thereof for purchase or conversion on the applicable
repurchase date or conversion date, as the case may be, on such date (or
promptly following the conversion date, in the case of conversion), unless the
repurchase date, as the case may be, falls after April 1 or October 1 (beginning
April 1, 2005) and on or prior to the corresponding Interest Payment Date; and
PROVIDED FURTHER, that, in the case of a Registration Default of the type
described in clause (iii) or (iv) of the first paragraph of this Section 2(e)
such Liquidated Damages Amount shall be paid
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only to the Holders entitled thereto by check mailed to the address set forth in
the Notice and Questionnaire delivered by such Holder or as otherwise agreed to
by the Company and such Holder. Nothing shall preclude any Holder from pursuing
or obtaining specific performance or other equitable relief with respect to this
Agreement.
All of the Company's obligations set forth in this Section 2(e) that
are outstanding with respect to any Registrable Security at the time such
security ceases to be a Registrable Security shall survive until such time as
all such obligations with respect to such security have been satisfied in full
(notwithstanding termination of this Agreement pursuant to Section 8(k)).
The parties hereto agree that the Liquidated Damages Amount provided
for in this Section 2(e) constitutes a reasonable estimate of the damages that
may be incurred by Holders of Registrable Securities by reason of the failure of
the Shelf Registration Statement to be filed or declared effective or available
for effecting resales of Registrable Securities in accordance with the
provisions hereof.
SECTION 3. REGISTRATION PROCEDURES. In connection with the registration
obligations of the Company under Section 2 hereof, the Company shall:
(a) Before filing any Shelf Registration Statement or Prospectus
or any amendments or supplements thereto with the SEC, furnish to the Initial
Purchaser and the Special Counsel of such offering, if any, copies of all such
documents proposed to be filed at least three Business Days prior to the filing
of such Shelf Registration Statement or amendment thereto or Prospectus or
supplement thereto.
(b) Subject to Section 3(h) prepare and file with the SEC such
amendments and post-effective amendments to each Shelf Registration Statement as
may be necessary to keep such Shelf Registration Statement continuously
effective during the Effectiveness Period; 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 use its reasonable best efforts to comply with the
provisions of the Securities Act applicable to it with respect to the
disposition of all securities covered by such Shelf Registration Statement
during the Effectiveness Period in accordance with the intended methods of
disposition by the sellers thereof set forth in such Shelf Registration
Statement as so amended or such Prospectus as so supplemented.
(c) As promptly as practicable give notice to the Notice Holders,
the Initial Purchaser and the Special Counsel, if any: (i) when any Prospectus,
prospectus supplement, Shelf Registration Statement or post-effective amendment
to a Shelf Registration Statement has been filed with the SEC and, with respect
to
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a Shelf Registration Statement or any post-effective amendment, when the same
has been declared effective, (ii) of any request, following the effectiveness of
the initial Shelf Registration Statement under the Securities Act, by the SEC or
any other federal or state governmental authority for amendments or supplements
to any Shelf 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 any
Shelf 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
occurrence of, but not the nature of or details concerning, a Material Event
(provided, however, that no notice by the Company shall be required pursuant to
this clause (v) in the event that the Company either promptly files or causes to
be filed a prospectus supplement to update the Prospectus or a Current Report on
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), and (vi) of the
determination by the Company that a post-effective amendment to a Shelf
Registration Statement will be filed with the SEC, which notice may, at the
discretion of the Company (or as required pursuant to Section 3(h)) state that
it constitutes a Deferral Notice, in which event the provisions of Section 3(h)
shall apply.
(d) Use its reasonable best efforts to obtain the withdrawal of
any order suspending the effectiveness of a Shelf 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 in which they
have been qualified for sale, in either case at the earliest possible moment,
and provide prompt notice to each Notice Holder and the Initial Purchaser of the
withdrawal of any such order.
(e) As promptly as practicable, furnish to each Notice Holder, the
Special Counsel, if any, and the Initial Purchaser, upon reasonable request and
without charge, at least one conformed copy of each Shelf Registration Statement
and any amendment thereto, including exhibits and all documents incorporated or
deemed to be incorporated therein by reference.
(f) During the Effectiveness Period, deliver to each Notice
Holder, the Special Counsel, if any, and the Initial Purchaser, in connection
with any sale of Registrable Securities pursuant to a Shelf Registration
Statement, without charge, as many copies of the Prospectus relating to such
Registrable Securities (including each preliminary prospectus) and any amendment
or supplement thereto as such Notice Holder may reasonably request; and the
Company hereby consents (except during such periods that a Deferral Notice is
outstanding and has not been revoked) to the use of such Prospectus or each
amendment or supplement thereto by each Notice Holder in connection with any
offering
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and sale of the Registrable Securities covered by such Prospectus or any
amendment or supplement thereto in the manner set forth therein.
(g) Prior to any public offering of the Registrable Securities
pursuant to a Shelf Registration Statement, use its reasonable best efforts to
register or qualify or cooperate with the Notice Holders and the Special
Counsel, if any, 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 Notice Holder reasonably requests
in writing (which request may be included in the Notice and Questionnaire);
prior to any public offering of the Registrable Securities pursuant to a Shelf
Registration Statement, use its reasonable best efforts to keep each such
registration or qualification (or exemption therefrom) effective during the
Effectiveness Period in connection with such Notice Holder's offer and sale of
Registrable Securities pursuant to such registration or qualification (or
exemption therefrom) and do any and all other acts or things reasonably
necessary or advisable to enable the disposition in such jurisdictions of such
Registrable Securities in the manner set forth in the Shelf Registration
Statement and the related Prospectus; PROVIDED that the Company will not be
required to (i) qualify as a foreign corporation or as a dealer in securities in
any jurisdiction where it would not otherwise be required to qualify but for
this Agreement 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.
(h) Upon (A) the issuance by the SEC of a stop order suspending
the effectiveness of a Shelf Registration Statement or the initiation of
proceedings with respect to a Shelf Registration Statement under Section 8(d) or
8(e) of the Securities Act, (B) the occurrence of any event or the existence of
any fact (a "MATERIAL EVENT") as a result of which a Shelf 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 any Prospectus 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, in the light of the
circumstances under which they were made, not misleading, or (C) the occurrence
or existence of any pending corporate development that, in the reasonable
discretion of the Company, makes it appropriate to suspend the availability of a
Shelf Registration Statement and the related Prospectus:
(i) in the case of clause (B) above, as promptly as
practicable prepare and file, if necessary pursuant to applicable law,
a post-effective amendment to such Shelf Registration Statement or a
supplement to the related Prospectus or any document incorporated
therein by reference or file any other required document that would be
incorporated by reference into such Shelf Registration Statement and
Prospectus so that such Shelf Registration Statement does not contain
any untrue statement of a material
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fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, and such
Prospectus does 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, as thereafter
delivered to the purchasers of the Registrable Securities being sold
thereunder, and, in the case of a post-effective amendment to a Shelf
Registration Statement, use its best efforts to cause it to be declared
effective as promptly as is practicable, and
(ii) give notice to the Notice Holders, and the Special
Counsel, if any, that the availability of a Shelf Registration
Statement is suspended (a "DEFERRAL NOTICE") and, upon receipt of any
Deferral Notice each Notice Holder agrees not to sell any Registrable
Securities pursuant to the Shelf Registration Statement until such
Notice Holder's receipt of copies of the supplemented or amended
Prospectus provided for in clause (i) above, or until it is advised in
writing by the Company that the Prospectus may be used.
The Company will use its reasonable best efforts to ensure that the use of the
Prospectus may be resumed (x) in the case of clause (A) above, as promptly as is
practicable, (y) in the case of clause (B) above, as soon as, in the sole
judgment of the Company, public disclosure of such Material Event would not be
prejudicial to or contrary to the interests of the Company or, if necessary to
avoid unreasonable burden or expense, as soon as practicable thereafter and (z)
in the case of clause (C) above, as soon as in the reasonable discretion of the
Company, such suspension is no longer appropriate. The Company shall be entitled
to exercise its right under this Section 3(h) to suspend the availability of a
Shelf Registration Statement or any Prospectus, without incurring or accruing
any obligation to pay liquidated damages pursuant to Section 2(e), no more than
once in any three month period or three times in any twelve month period, and
any such period during which the availability of the Shelf Registration
Statement and any Prospectus is suspended (the "DEFERRAL PERIOD") shall, without
incurring any obligation to pay liquidated damages pursuant to Section 2(e), not
exceed 30 days in any three month period (or 60 days in any three month period
in the event of a Material Event pursuant to which the Company has delivered a
second notice as required below) or 90 days in any 12 month period; PROVIDED
that in the case of a Material Event relating to a probable acquisition or
financing, recapitalization, business combination or other similar transaction,
the Company may, without incurring any obligation to pay liquidated damages
pursuant to Section 2(e), deliver to Notice Holders a second notice to the
effect set forth above, which shall have the effect of extending the Deferral
Period by up to an additional 30 days, or such shorter period of time as is
specified in such second notice.
(i) If reasonably requested in writing in connection with a
disposition of Registrable Securities pursuant to a Shelf Registration Statement
and upon
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three Business Days' prior notice, make reasonably available for inspection
during normal business hours by a representative for the Notice Holders of such
Registrable Securities, any broker-dealers, attorneys and accountants retained
by such Notice Holders, and any attorneys or other agents retained by a
broker-dealer engaged by such Notice Holders, all relevant financial and other
records and pertinent corporate documents and properties of the Company and its
material subsidiaries and cause the appropriate officers, directors and
employees of the Company and its material subsidiaries to make reasonably
available for inspection during normal business hours on reasonable notice all
relevant information reasonably requested by such representative for the Notice
Holders, or any such broker-dealers, attorneys or accountants in connection with
such disposition, in each case as is customary for similar "due diligence"
examinations; PROVIDED 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 and shall be used solely
for the purposes of satisfying "due diligence" obligations under the Securities
Act and exercising rights under this Agreement, 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 Shelf
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, and PROVIDED FURTHER that the foregoing inspection and information
gathering shall, to the greatest extent possible, be coordinated on behalf of
all the Notice Holders and the other parties entitled thereto by the Special
Counsel, if any. Any person legally compelled to disclose any such confidential
information made available for inspection shall provide the Company with prompt
prior written notice of such requirement so that the Company may seek a
protective order or other appropriate remedy.
(j) 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) for a 12-month period commencing on the first day of the
first fiscal quarter of the Company commencing after the effective date of a
Shelf Registration Statement, which statements shall be made available no later
than 45 days after the end of the 12-month period or 90 days if the 12-month
period coincides with the fiscal year of the Company.
(k) Cooperate with each Notice Holder to facilitate the timely
preparation and delivery of certificates representing Registrable Securities
sold or
13
to be sold pursuant to a Shelf Registration Statement, which certificates shall
not bear any restrictive legends, and cause such Registrable Securities to be in
such denominations as are permitted by the Indenture and registered in such
names as such Notice Holder may request in writing at least three Business Days
prior to any sale of such Registrable Securities.
(l) Provide a CUSIP number for all Registrable Securities covered
by each Shelf Registration Statement not later than the effective date of such
Shelf Registration Statement and provide the Trustee and the transfer agent for
the Common Stock with printed certificates for the Registrable Securities that
are in a form eligible for deposit with The Depository Trust Company.
(m) Cooperate and assist in providing such information as is
required for any filings required to be made with the National Association of
Securities Dealers, Inc.
(n) Upon (i) the filing of the initial Shelf Registration
Statement and (ii) the effectiveness of the initial Shelf Registration
Statement, announce the same, in each case by release to PR Newswire or other
reasonable means of distribution.
SECTION 4. HOLDER'S OBLIGATIONS. (a) Each Holder agrees, by acquisition
of the Registrable Securities, that no Holder shall be entitled to sell any of
such Registrable Securities pursuant to a Shelf Registration Statement or to
receive a Prospectus relating thereto, unless such Holder has furnished the
Company with a Notice and Questionnaire as required pursuant to Section 2(d)
hereof (including the information required to be included in such Notice and
Questionnaire) and the information set forth in the next sentence. Each Notice
Holder 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 Notice Holder not misleading and any other information regarding such
Notice Holder and the distribution of such Registrable Securities as may be
required to be disclosed in a Shelf Registration Statement under applicable law
or pursuant to SEC comments or as the Company may from time to time reasonably
request. 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 or provided by 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 or provided by such Holder or its plan of distribution necessary to
make the statements in such Prospectus, in the light of the circumstances under
which they were made, not misleading.
(b) Upon receipt of any Deferral Notice, each Notice Holder agrees
not to sell any Registrable Securities pursuant to any Shelf Registration
Statement until such Notice Holder's receipt of copies of the supplemented or
amended
14
Prospectus provided for in Section 3(h)(i), or until it is advised in writing by
the Company that the Prospectus may be used.
SECTION 5. REGISTRATION EXPENSES. The Company shall bear all fees and
expenses incurred in connection with the performance by the Company of its
obligations under Sections 2 and 3 of this Agreement whether or not any Shelf
Registration Statement is declared 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 and state securities or Blue Sky laws (including,
without limitation, reasonable fees and disbursements of the Special Counsel, if
any, in connection with Blue Sky qualifications of the Registrable Securities
under the laws of such jurisdictions as Notice Holders of a majority of the
Registrable Securities being sold pursuant to a Shelf Registration Statement 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), (iii) duplication expenses relating to
copies of any Shelf Registration Statement or Prospectus delivered to any
Holders hereunder, (iv) fees and disbursements of counsel for the Company in
connection with any Shelf Registration Statement, (v) reasonable fees and
disbursements of the Trustee and its counsel and of the registrar and transfer
agent for the Common Stock, (vi) Securities Act liability insurance obtained by
the Company in its sole discretion and (vii) the reasonable fees and
disbursements of Special Counsel, if any, in an amount not to exceed $20,000 in
the aggregate during the term of the Agreement. In addition, the Company shall
pay the internal expenses of the Company (including, without limitation, all
salaries and expenses of officers and employees performing legal or accounting
duties), the expense of any annual audit, the fees and expenses incurred in
connection with the listing by the Company of the Registrable Securities on any
securities exchange on which similar securities of 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 any broker's commission, agency fee or
underwriter's discount or commission in connection with the sale of the
Registrable Securities under a Shelf Registration Statement.
SECTION 6. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless each Notice
Holder, each person, if any, who controls any Notice Holder within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act,
and each affiliate of any Notice Holder within the meaning of Rule 405 under the
Securities Act from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue statement of a
material fact contained in any Shelf Registration Statement or any amendment
thereof, any preliminary
15
prospectus or any Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto), 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 not misleading, except
insofar as such losses, claims, damages or liabilities are caused by any such
untrue statement or omission or alleged untrue statement or omission based upon
information relating to any Holder furnished to the Company in writing by such
Holder expressly for use therein; PROVIDED that the foregoing indemnity shall
not inure to the benefit of any Holder (or to the benefit of any person
controlling such Holder) from whom the person asserting such losses, claims or
liabilities purchased the Registrable Securities, if a copy of the Prospectus
(as then amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) was not sent or given by or on behalf of such
Holder to such person, if required by law so to have been delivered at or prior
to the written confirmation of the sale of the Registrable Securities to such
person, and if the Prospectus (as so amended or supplemented) would have cured
the defect giving rise to such losses, claims, damages or liabilities, unless
such failure is the result of noncompliance by the Company with Section 2(c)
hereof.
(b) Each Holder agrees severally and not jointly to indemnify and
hold harmless the Company, its directors, its officers who sign any Shelf
Registration Statement and each person, if any, who controls the Company (within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act) or any other Holder, to the same extent as the foregoing indemnity
from the Company to such Holder, but only with reference to information relating
to such Holder furnished to the Company in writing by such Holder expressly for
use in such Shelf Registration Statement or Prospectus or amendment or
supplement thereto. In no event shall the liability of any Holder hereunder be
greater in amount than the dollar amount of the proceeds received by such Holder
upon the sale of the Registrable Securities pursuant to the Shelf Registration
Statement giving rise to such indemnification obligation.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to Section 6(a) or 6(b) hereof, 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 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
16
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 the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all such indemnified parties and that all such fees and expenses
shall be reimbursed as they are incurred. Such firm shall be designated in
writing by, in the case of parties indemnified pursuant to Section 6(a), the
Holders of a majority (with Holders of Securities deemed to be the Holders, for
purposes of determining such majority, of the number of shares of Underlying
Common Stock into which such Securities are or would be convertible as of the
date on which such designation is made) of the Registrable Securities covered by
the Shelf Registration Statement held by Holders that are indemnified parties
pursuant to Section 6(a) and, in the case of parties indemnified pursuant to
Section 6(b), the Company. 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. Notwithstanding
the foregoing sentence, if at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel as contemplated by the second and third sentences of this paragraph,
the indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 90 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement unless such fees and expenses are being disputed in good faith. 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) To the extent that the indemnification provided for in Section
6(a) or 6(b) is unavailable to an indemnified party or insufficient in respect
of any losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (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 6(d)(i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative
17
benefits referred to in clause 6(d)(i) above but also the relative fault of the
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, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the Company
shall be deemed to be equal to the total net proceeds from the initial placement
pursuant to the Purchase Agreement (before deducting expenses) of the
Registrable Securities to which such losses, claims, damages or liabilities
relate. The relative benefits received by any Holder shall be deemed to be equal
to the value of receiving registration rights under this Agreement for the
Registrable Securities. 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 Section 6(d) are several in proportion to the respective number
of Registrable Securities they have sold pursuant to a Shelf 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 of 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,
claims, damages or liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any 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), no indemnifying party that is a selling
Holder shall be required to contribute any amount in excess of the amount by
which the total price at which the Registrable Securities sold by it and
distributed to the public were offered to the public exceeds the amount of any
damages that 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.
(e) The remedies provided for in this Section 6 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
an indemnified party at law or in equity, hereunder, under the Purchase
Agreement or otherwise.
(f) 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 any
18
Holder, any person controlling any Holder or any affiliate of any Holder or by
or on behalf of the Company, its officers or directors or any person controlling
the Company and (iii) the sale of any Registrable Securities by any Holder.
SECTION 7. INFORMATION REQUIREMENTS. The Company covenants that, if at
any time before the end of the Effectiveness Period, the Company is not subject
to the reporting requirements of the Exchange Act, it will cooperate with any
Holder and take such further reasonable action as any Holder may reasonably
request in writing (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 and
customarily taken in connection with sales pursuant to such exemptions. Upon the
written request of any Holder, the Company shall deliver to such Holder a
written statement as to whether it has complied with such filing requirements,
unless such a statement has been included in the Company's most recent report
filed pursuant to Section 13 or Section 15(d) of Exchange Act. Notwithstanding
the foregoing, nothing in this Section 7 shall be deemed to require the Company
to register any of its securities (other than the Common Stock) under the
Exchange Act.
SECTION 8. MISCELLANEOUS.
(a) NO CONFLICTING AGREEMENTS. The Company is not, as of the date
hereof, a party to, nor shall it, on or after the date of this Agreement, enter
into, any agreement with respect to its securities that conflicts with the
rights granted to the Holders in this Agreement. The Company represents and
warrants that the rights granted to the Holders hereunder do not in any way
conflict with the rights granted to the holders of the Company's securities
under any other agreements.
(b) 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 Underlying Common Stock constituting
Registrable Securities (with Holders of Securities deemed to be the Holders, for
purposes of this Section, of the number of outstanding shares of Underlying
Common Stock into which such Securities are or would be convertible as of the
date on which such consent is requested). 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 whose securities are being
sold pursuant to a Shelf Registration Statement and that does not directly or
indirectly affect the rights of other Holders may be given by Holders of at
least a majority of the Registrable Securities being sold by such Holders
pursuant to such Shelf Registration Statement; PROVIDED that the provisions of
this sentence may not be amended, modified or supplemented
19
except in accordance with the provisions of the immediately preceding sentence.
Notwithstanding the foregoing sentence, this Agreement may be amended by written
agreement signed by the Company and the Initial Purchaser, without the consent
of the Holders of Registrable Securities, to cure any ambiguity or to correct or
supplement any provision contained herein that may be defective or inconsistent
with any other provision contained herein, or to make such other provisions in
regard to matters or questions arising under this Agreement that shall not
adversely affect the interests of the Holders of Registrable Securities. Each
Holder of Registrable Securities outstanding at the time of any such amendment,
modification, supplement, waiver or consent or thereafter shall be bound by any
such amendment, modification, supplement, waiver or consent effected pursuant to
this Section 8(b) whether or not any notice, writing or marking indicating such
amendment, modification, supplement, waiver or consent appears on the
Registrable Securities or is delivered to such Holder.
(c) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, by telecopier, by
courier or by first-class mail, return receipt requested, and shall be deemed
given (i) when made, if made by hand delivery, (ii) upon confirmation, if made
by telecopier, (iii) one Business Day after being deposited with such courier,
if made by overnight courier or (iv) on the date indicated on the notice of
receipt, if made by first-class mail, to the parties as follows:
(i) if to a Holder, at the most current address given by
such Holder to the Company in a Notice and Questionnaire or any
amendment thereto;
(ii) if to the Company, to:
ANADIGICS, Inc.
141 Mt. Bethel Road
Warren, New Jersey 07059
Attention: Tom Shields
Telecopy No.: (908) 412-5989
20
with a copy to:
Cahill Gordon & Reindel LLP
80 Pine Street
New York, New York 10005
Attention: Stephen A. Greene, Esq.
Telecopy No.: (212) 269-5420
(iii) if to the Initial Purchaser, to:
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Attention: Equity Capital Markets
Telecopy No.: (212) 761-0538
or to such other address as such person may have furnished to the other persons
identified in this Section 8(c) in writing in accordance herewith.
(d) 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
Purchaser or subsequent Holders 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.
(e) SUCCESSORS AND ASSIGNS. Any person who purchases any
Registrable Securities from the Initial Purchaser shall be deemed, for purposes
of this Agreement, to be an assignee of the Initial Purchaser. This 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, PROVIDED that nothing herein shall be
deemed to permit any assignment, transfer or other disposition of Registrable
Securities in violation of the terms of the Indenture. If any transferee of any
Holder shall acquire Registrable Securities, in any manner, whether by operation
of law or otherwise, such Registrable Securities shall be held subject to all of
the terms of this Agreement, and by taking and holding such Registrable
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 and such
person shall be entitled to receive the benefits hereof.
(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 original and all of which taken together
shall constitute one and the same agreement.
21
(g) HEADINGS. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
(h) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(i) 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 reasonable 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 being intended that all of the rights and privileges
of the parties shall be enforceable to the fullest extent permitted by law.
(j) ENTIRE AGREEMENT. This Agreement is intended by the parties as
a final expression of their agreement and 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 Registrable Securities. 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 Registrable Securities. This Agreement supersedes all prior agreements and
undertakings among the parties with respect to such registration rights. No
party hereto shall have any rights, duties or obligations other than those
specifically set forth in this Agreement. In no event will such methods of
distribution take the form of an underwritten offering of the Registrable
Securities without the prior agreement of the Company.
(k) 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 Section 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 of which shall remain in effect in accordance with
its terms.
22
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
ANADIGICS, INC.
By:
-------------------------------------
Name:
Title:
Confirmed and accepted as of the date first above written, for itself as the
Initial Purchaser:
MORGAN STANLEY & CO. INCORPORATED
By:
--------------------------------
Name:
Title: