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EXHIBIT 4.2
TEKELEC
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and entered
into as of November 2, 1999, by and among Tekelec, a California corporation (the
"Company"), Deutsche Banc Securities Inc. and Warburg Dillon Read LLC,
(collectively, the "Initial Purchasers") pursuant to the Purchase Agreement
dated as of October 27, 1999 (the "Purchase Agreement"), between 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:
(a) Affiliate: With respect to any specified Person, any other
Person directly or indirectly controlling or controlled by, or under direct or
indirect common control with, such specified Person . For purposes of this
definition, the term "control" 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 such Person, whether through the
ownership of voting securities, by contract, or otherwise, and the terms
"controlling," "controlled by," and "under direct or indirect common control
with" have meanings correlative thereto.
(b) 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.
(c) Common Stock: The shares of common stock, without par value,
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.
(d) Damages Accrual Period: See Section 2(c) hereof.
(e) Damages Payment Date: Each of the semi-annual interest
payment dates provided in the Indenture, whether or not Liquidated Damages (as
defined herein) are payable on such date.
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(f) 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.
(g) Effectiveness Target Date: See Section 2(a) hereof.
(h) Event: See Section 2(d) hereof.
(i) Event Date: See Section 2(d) hereof.
(j) Exchange Act: The Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC promulgated thereunder.
(k) Filing Date: See Section 2(a) hereof.
(l) Holder: See the second paragraph of this Agreement.
(m) Indemnified Party: See Section 5(c) hereof.
(n) Indemnifying Party: See Section 5(c) hereof.
(o) Indenture: The Indenture, dated as of November 2, 1999,
between the Company and Bankers Trust Company, as trustee, pursuant to which the
Notes are being issued, as amended or supplemented from time to time in
accordance with the terms thereof.
(p) Initial Purchasers: See the first paragraph of this
Agreement.
(q) Initial Shelf Registration: See Section 2(a) hereof.
(r) Liquidated Damages: See Section 2(d) hereof.
(s) Losses: See Section 5(a) hereof.
(t) Majority of Registrable Securities: A majority of the then
outstanding aggregate principal amount of Registrable Securities. For purposes
of this calculation, Registrable Securities which have been converted into
shares of Common Stock shall be deemed to bear the principal amount at which
such Registrable Securities were converted.
(u) Notice Holder: See Section 2(e) hereof.
(v) Notes: The 3.25% Convertible Subordinated Discount Notes due
2004 of the Company being issued and sold pursuant to the Purchase Agreement and
the Indenture.
(w) Person: Any natural person, corporation, partnership, limited
liability partnership, limited liability company, trust or other legal entity.
(x) Prospectus: The prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a
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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, including post-effective amendments, and
all material incorporated by reference or deemed to be incorporated by reference
in such Prospectus.
(y) Purchase Agreement: See the first paragraph of this
Agreement.
(z) Record Holder: (i) with respect to any Damages Payment Date
relating to the Notes, each Person who is a registered holder of such Notes 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 the Common Stock, each Person who is a registered
holder of such Common Stock 15 days prior to such Damages Payment Date.
(aa) Registrable Securities: Each Note and each share of Common
Stock into which the Notes are convertible or converted upon original issuance
thereof, and at all times subsequent thereto, 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 share of 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 salable by the Holder thereof pursuant to Rule
144(k) or (iii) it is sold to the public pursuant to Rule 144, and, as a result
of an event or circumstance described in any of the foregoing clauses (i)
through (iii), the legends with respect to transfer restrictions required under
the Indenture (other than any such legends required solely as the consequences
of the fact that the Registrable Securities 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.
(bb) Registration Expenses: See Section 4 hereof.
(cc) 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. A Registration
Statement shall include without limitation the Initial Shelf Registration
Statement and any Subsequent Shelf Registration Statement.
(dd) Requisite Information: See Section 3(a) hereof.
(ee) 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.
(ff) 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.
(gg) SEC: The Securities and Exchange Commission.
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(hh) Securities Act: The Securities Act of 1933, as amended, and
the rules and regulations of the SEC promulgated thereunder.
(ii) Selling Holder: A Holder offering to sell Registrable
Securities.
(jj) Shelf Registration Statement: See Section 2(a) hereof.
(kk) Special Counsel: Gray Cary Ware & Freidenrich LLP or such
other successor counsel as shall be specified by the Holders of a Majority of
Registrable Securities, the fees and expenses of which will be paid by the
Company pursuant to Section 5 hereof.
(ll) Subsequent Shelf Registration Statement: See Section 2(b)
hereof.
(mm) Suspension Period: See Section 2(c).
(nn) TIA: The Trust Indenture Act of 1939, as amended.
(oo) Trustee: The Trustee under the Indenture.
(pp) Underwritten Registration or Underwritten Offering: A
registration in which the Registrable Securities are sold by Holders thereof to
an underwriter for reoffering to the public.
2. SHELF REGISTRATION STATEMENT.
(a) Subject to the provisions of Section 2(c) hereof, the Company
shall prepare and file with the SEC, as soon as practicable but in any event on
or prior to the date 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 Statement") registering the resale from time to time by the Holders
of all of the Registrable Securities (the "Initial Shelf Registration"). The
Initial Shelf Registration shall be on Form S-3 under the Securities Act or
another appropriate SEC Registration Statement form permitting registration of
such Registrable Securities for resale by such Holders in the manner or manners
designated by them. Subject to the provisions of Section 2(c) hereof, the
Company shall use its reasonable best efforts to cause the Initial Shelf
Registration to be declared effective under the Securities Act as soon as
practicable but in any event on or prior to the date 150 days following the
Filing Date (the "Effectiveness Target Date"), and shall use its reasonable best
efforts to keep the Initial Shelf Registration continuously effective under the
Securities Act until the earlier of the expiration of the Effectiveness Period
or the date a Subsequent Shelf Registration covering all of the Registrable
Securities has been declared effective under the Securities Act. Subject to the
provisions of Section 2(c) hereof, the Company further agrees to use its
reasonable best efforts to prevent the Initial Shelf Registration from
containing a material misstatement or omission not being effective and usable
for resale of the Registrable Securities during the Effectiveness Period.
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(b) Subject to the provisions of Section 2(c) hereof, if the
Initial Shelf Registration or any Subsequent Shelf Registration Statement 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 best efforts to obtain the prompt withdrawal of any order suspending
the effectiveness thereof, and, if an amendment of the Shelf Registration
Statement could reasonably be expected to obtain the withdrawal of the order
suspending the effectiveness thereof (a "Withdrawal") the Company shall, within
30 days of such cessation of effectiveness, amend the Shelf Registration
Statement in a manner reasonably expected to obtain the Withdrawal, or, in the
event that the Company reasonably determines that a Withdrawal is not likely to
be granted, file an additional Shelf Registration Statement covering all of the
Registrable Securities (a "Subsequent Shelf Registration Statement"). Subject to
the provisions of Section 2(c) hereof, if a Subsequent Shelf Registration
Statement is filed, the Company shall use its reasonable best 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's obligations under Sections 2(a), 2(b), 3(b),
3(c), 3(d)(iv), 3(e), 3(f), 3(g), 3(h), 3(i), 3(j), 3(k) and 3(m) (the
"Registration Obligations") shall be subject to its right as described in this
Section 2(c) to create a Suspension Period (as defined herein). In the event (i)
of the happening of any event of the kind described in Section 3(d)(ii),
3(d)(iii) or 3(d)(iv) hereof, (ii) of the existence of any fact or happening of
any event which makes any statement of a material fact in a 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 the
Registration Statement 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 the Prospectus 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 light of the circumstances under which they were made, not misleading, or
(iii) that, in the good faith judgment of the Company, it is advisable to (X)
not file the Initial Shelf Registration Statement, a Subsequent Shelf
Registration Statement, or any other Registration Statement, (Y) not have the
Initial Shelf Registration Statement, a Subsequent Shelf Registration Statement
or any other Registration Statement become effective or remain effective, or (Z)
suspend the use of the Prospectus, in each such case 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 reasonably
believes public disclosure will be materially prejudicial to the Company, the
Company shall deliver a certificate in writing, signed by an authorized
executive officer of the Company, to the Trustee, the Special Counsel and any
Notice Holders that it is invoking its rights under this Section 2(c), and
thereafter the Company's Registration Obligations and, as the case may be, the
use of the Prospectus and Registration Statement, shall be suspended. The
Company will use its reasonable best efforts to terminate the period of time
covered by such suspension (the "Suspension Period") as soon as practicable, in
the case of suspension under Section 2(c)(i) or 2(c)(ii), and, in the case of a
pending development or event referred to in Section 2(c)(iii) hereof, as soon
as, in the good faith-judgment of the Company, public disclosure of such
material corporate development or similar material event
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would not have a material adverse effect on the Company. Notwithstanding the
foregoing, the Company shall not under any circumstances be entitled to create
Suspension Periods for an aggregate period of more than 90 days in any 12-month
period, nor shall it be entitled to impose any Suspension Period in excess of 30
consecutive days unless the basis for such imposition is a pending development
or event referred to in Section 2(c)(iii).
(d) 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, (ii) the Initial Shelf
Registration has not been declared effective by the Effectiveness Target Date,
(iii) prior to the end of the Effectiveness Period, the SEC shall have issued a
stop order suspending the effectiveness of the Shelf Registration Statement or
proceedings have been initiated with respect to the Shelf Registration Statement
under Section 8(d) or 8(e) of the Securities Act, in either case without the
Company creating a Suspension Period therefor, (iv) the aggregate number of days
of Suspension Periods in a 12-month period exceeds the time permitted pursuant
to Section 2(c) hereof or (v) the length of any Suspension Period imposed as a
result of an event described in Section 2(c)(i) or 2(c)(ii) exceeds 30
consecutive days. Each of the Events of a type described in any of the foregoing
clauses (i) through (v) are individually referred to herein as an "Event." The
Filing Date in the case of clause (i), the Effectiveness Target Date in the case
of clause (ii), the date on which the effectiveness of the Shelf Registration
Statement has been suspended or proceedings with respect to the Shelf
Registration Statement under Section 8(d) or 8(e) of the Securities Act have
been commenced without the Company creating a Suspension Period in the case of
clause (iii), the date on which the aggregate number of days of Suspension
Periods in a 12-month period exceeds the time permitted by Section 2(c) hereof
in the case of clause (iv), and the date on which a Suspension Period imposed as
a result of events described in Section 2(c)(i) or 2(c)(ii) exceeds 30
consecutive days, being referred to herein as an "Event Date."
Notwithstanding the foregoing, the parties hereto agree that an Event
shall be deemed not to have occurred to the extent that the cause of said Event
is primarily due to the act or failure to act of one or more Holders or the
Initial Purchasers. An Event 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 Shelf Registration is filed
in the case of an Event of the type described in clause (i); the date the
Initial Shelf Registration is declared effective in the case of an Event of the
described in clause (ii); the date that all stop orders suspending effectiveness
of the Shelf Registration Statement have been removed and the proceedings
initiated with respect to the Shelf Registration Statement 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 (iii); the date of termination of the
Suspension Period which caused the aggregate number of days in Suspension
Periods in any 12-month period to exceed the number permitted by Section 2(c) in
the case of Events of the types described in clause (iv); and the date of
termination of the Suspension Period which was imposed as a result of events
described in Section 2(c)(i) or 2(c)(ii) and which exceeded 30 consecutive days
in the case of Events of the types described in clause (v).
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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 amount (the "Liquidated Damages"): (i) to each Holder of Notes that are
Registrable Securities, accruing at a rate equal to one-quarter of one percent
per annum (25 basis points) on the aggregate principal amount of Notes that are
Registrable Securities held by such Holder and (ii) to each Holder of shares of
Common Stock that are Registrable Securities, 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 that are
Registrable Securities held by such Holder. Notwithstanding the foregoing, no
Liquidated Damages shall accrue 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, as the case may be, entitled
thereto, at least one Business Day 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 account
specified by them, or if no such accounts have been specified on or before the
Damage Payment Date by mailing checks to their registered addresses as they
appear in the register of the Notes, in the case of the Notes, and in the
register of the Company for the Common Stock, in the case of the Common Stock,
provided, however, that any Liquidated Damages accrued with respect to any Note
or portion thereof called for redemption on a Redemption Date, or repurchased in
connection with a Change of Control (as defined in the Indenture) on a
Repurchase Date (as defined in the Indenture), or converted into Common Stock on
a Date of Conversion (as defined in the Indenture) 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 Date of Conversion, as the case
may be, on such date (or promptly following the Date of Conversion, in the case
of conversion of a Note). If a Holder of a Note submits a Note for conversion
during the period between a record date for the payment of Liquidated Damages
and the related Damages Payment Date, Liquidated Damages for the period from the
Date of Conversion through the next succeeding Damages Payment Date shall accrue
and be payable to the Holder of Common Stock received on conversion on the next
succeeding Damages Payment Date, notwithstanding that such Holder was not a
Record Holder with respect to such Damages Payment Date. The Trustee shall be
entitled, on behalf of the Holders of Notes and Common Stock to seek any
available remedy for the enforcement of this Agreement, including for the
payment of such Liquidated Damages. Nothing shall preclude a Holder of
Registrable Securities from pursuing or obtaining specific performance or other
equitable relief with respect to this Agreement.
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All of the Company's obligations set forth in this Section 2(d) which
are outstanding with respect to any Registrable Securities 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 the Agreement pursuant to Section 7(o)).
The parties hereto agree that the Liquidated Damages provided for in
this Section 2(d) 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 Statement to be
filed or declared effective or available (absolutely or as a practical matter)
for effecting resales of Registrable Securities, as the case may be, in
accordance with the provisions hereof.
(e) Each Holder of Registrable Securities agrees that if such
Holder wishes to sell Registrable Securities pursuant to a Registration
Statement and related Prospectus, it will do so only in accordance with this
Section 2(e). Each Holder of Registrable Securities wishing to sell Registrable
Securities pursuant to a Registration Statement and related Prospectus agrees to
deliver written notice of such intent (the "Transfer Notice") to the Company at
least three (3) Business Days prior to any intended distribution of Registrable
Securities under such Registration Statement. Upon delivery of such Transfer
Notice, such Holder shall be deemed to be a "Notice Holder" for purposes of this
Agreement until the earlier of such Holder's disposition of the Registrable
Securities held by such Holder or the expiration of fifteen (15) Business Days
following the delivery of the Transfer Notice (such 15 Business Day period to be
tolled during a Suspension Period). If the Company indicates to any Holder of
the existence of a Suspension Period, such fact, as well as any other
information regarding the nature of the cause of such Suspension Period
disclosed to the Holder, shall be kept confidential by such Holder, 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, (iii) such information becomes generally
available to the public other than as a result of disclosure or failure to
safeguard by any such Holder or (iv) such information becomes available to any
such Holder from a source other than the Company and such source is not bound by
a confidentiality agreement. In the event disclosure is required under clause
(i) or (ii), the Holder shall notify the Company and give it a chance to apply
for a protective order or other confidentiality protection, and shall only
disclose such information to the extent required. The Holder shall not use the
fact of a Suspension Period, or any other material non-public information
disclosed by the Company to the Holder in connection with the purchase or sale
of any security of the Company or derivative security thereof.
Any Holder selling Registrable Securities pursuant to a Registration
Statement shall deliver a copy of the then current Prospectus to each purchaser
of such securities as required by the Securities Act, and shall otherwise comply
with all requirements of the Securities Act and Exchange Act in connection with
such sale.
3. REGISTRATION PROCEDURES. In connection with the Company's
registration obligations under Section 2 hereof, the Company shall effect such
registrations to
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permit the sale of the Registrable Securities by various methods, and pursuant
thereto the Company shall as expeditiously as possible:
(a) Before filing with the SEC a Registration Statement or
Prospectus or any amendments or supplements thereto, the Company shall furnish
to Special Counsel copies of all such documents proposed to be filed. The filing
of reports or other materials under the Exchange Act shall not be considered a
filing of a Registration Statement or Prospectus or any amendments or
supplements thereto. Special Counsel shall have the right to object within two
business days of receipt of such copies to any erroneous information therein
concerning the Selling Holders or intended methods of distribution. The Company
shall use its reasonable best efforts to reflect in each such document
referenced in this paragraph so filed with the SEC such comments as the Special
Counsel may reasonably propose pursuant to the preceding sentence. The Company
shall consider in good faith any other comments which Special Counsel may make.
(b) Subject to the provisions of Section 2(c) hereof, 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, to permit the disposition of
all 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. Subject to the provisions of Section 2(c) hereof,
the Company shall ensure that (i) any Shelf Registration Statement and any
amendment thereto and any Prospectus forming a part thereof and any amendment or
supplement thereto complies in all material respects with the Securities Act and
the rules and regulations thereunder, (ii) any Shelf Registration Statement and
any amendment thereto does not, when it becomes effective, contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading and
(iii) any Prospectus forming part of any Shelf Registration Statement, and any
amendment or supplement to such Prospectus, does not include an untrue statement
or a material fact or omit to state a material fact necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading.
(c) Each Holder shall furnish to the Company such information
regarding the distribution of its Registrable Securities as is required by law
to be disclosed in the applicable Registration Statement (the "Requisite
Information") prior to effecting any sale pursuant to such Registration
Statement.
Subject to the provisions of Section 2(c) hereof, the Company shall
file, within 10 Business Days after the receipt of notice from any Holder which
includes the Requisite Information with respect to such Holder, a Prospectus
supplement pursuant to Rule 424 (or any similar provision then in force) under
the Securities Act or otherwise amend or supplement such Registration Statement
to include in the Prospectus the Requisite Information as to such Holder (and
the Registrable Securities held by such Holder), and the Company shall provide
such Holder
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and the Special Counsel within 10 Business Days after receipt of such notice
with a copy of such Prospectus as so amended or supplemented containing the
Requisite Information in order to permit such Holder to comply with the
Prospectus delivery requirements of the Securities Act in a timely manner with
respect to any proposed disposition of such Holder's Registrable Securities;
PROVIDED, HOWEVER, that notwithstanding the requirements of 3(a) hereof, the
Company shall not be required to provide any Holder with a copy of such
Prospectus as so amended or supplemented solely to contain the Requisite
Information in advance of filing the same with the SEC.
Subject to the provisions of Section 2(c) hereof, if (i) any such
Registration Statement refers to any Holder by name or otherwise as the Holder
of any securities of the Company, and (ii) (x) any such Holder has sold or
transferred all of its Registrable Securities, (y) the securities of the Company
held by such Holder shall have ceased to be Registrable Securities or (z) such
other event shall have occurred that makes such reference to such Holder by name
or otherwise not required by the Securities Act or any similar Federal statute
then in force, then such Holder shall have the right to require the deletion of
the reference to such Holder in such Registration Statement at any time
subsequent to the time that such reference ceases to be required.
(d) Notify the Notice Holders and the Special Counsel 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 (provided that the filing of
reports or other materials under the Exchange Act shall not be considered a
filing of a Registration Statement or Prospectus or any amendments or
supplements thereto); (ii) 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, (iii) 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 proceedings for such purpose, and (iv) subject
to the provisions of Section 2(c), of the Company's determination that a
post-effective amendment to a Registration Statement would be appropriate.
(e) Subject to the provisions of Section 2(c) hereof , use its
reasonable best 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.
(f) Subject to the provisions of Section 2(c) hereof, furnish to
each Selling Holder (if requested by such Selling Holder), the Special Counsel
and the Initial Purchasers, without charge, at least one conformed copy of the
Registration Statement or Registration 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.
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(g) Subject to the provisions of Section 2(c) hereof, deliver to
each Selling Holder, the Special Counsel and the Underwriters, 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) Subject to the provisions of Section 2(c) hereof, prior to
any public offering of Registrable Securities, (i) register or qualify or
cooperate with the Selling Holders 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 reasonably requests in writing, (ii) keep each such
registration or qualification (or exemption therefrom) effective during the
period such Registration Statement is required to be kept effective and (iii) 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 (a) qualify generally to do business in any jurisdiction where it is
not then so qualified or (b) 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) Subject to the provisions of Section 2(c), cause the
Registrable Securities covered by the applicable Registration Statement to be
registered with or approved by such other governmental agencies in addition to
the SEC or authorities within the United States as may be necessary to enable
the Selling Holder or Holders thereof to consummate the disposition of such
Registrable Securities.
(j) During the Effectiveness Period (subject to the provisions of
Section 2(c) hereof), immediately upon the existence of any fact or the
occurrence of any event as a result of which (i) 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 (ii) a 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 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 required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading, as
thereafter delivered to the purchasers of the
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Registrable Securities being sold thereunder; and in the case of a
post-effective amendment to a Registration Statement, use its reasonable best
efforts to cause it to become effective as soon as practicable.
(k) Subject to the provisions of Section 2(c) hereof, take all
such other reasonable actions in connection therewith in order to expedite or
facilitate the disposition of such Registrable Securities.
(l) Make generally available to its securityholders earnings
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
reasonable 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.
(m) Subject to Section 2(c), cooperate with the Selling Holders
of Registrable Securities, the Special Counsel and the Underwriters, if any, 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.
(n) Not later than the effectiveness date of the Initial Shelf
Registration hereunder, provide a CUSIP number for the Registrable Securities
registered under such Registration Statement, and provide the Trustee under the
Indenture and 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.
(o) 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 or quoted no later than the date the
Registration Statement is declared effective, and, in connection therewith, to
the extent applicable, to make such filings as are required under the Exchange
Act and to have such filings declared effective thereunder.
(p) Cooperate and assist in any filing required to be made with
the National Association of Securities Dealers, Inc.
(q) Cause the Indenture to be qualified under the TIA no later
than the date the Initial Shelf Registration is declared effective, and, in
connection therewith, cooperate with the Trustee and the Holders and the Special
Counsel to effect such changes to the Indenture as may be required for such
Indenture to be so qualified in accordance with the terms of the TIA; and
execute and use its reasonable best efforts to cause the Trustee to execute all
documents as may be required to effect such changes and all other forms and
documents required to be filed with the SEC to enable such Indenture to be so
qualified in a timely manner.
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4. REGISTRATION EXPENSES. All fees and expenses incident to the
Company's obligations under 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 with respect to filings
required to be made with the National Association of Securities Dealers, Inc.),
(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 reasonably requested by the Special Counsel, the Holders of a
Majority of Registrable Securities included in any Registration Statement and
Underwriters, if any, and (iii) reasonable fees and disbursements of counsel for
the Company in connection with the Shelf Registration Statement. In addition,
the Company shall pay the fees and expenses incurred in connection with the
listing or quotation of the securities to be registered on any securities
exchange or quotations system 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.
The Company's obligation contained in this Section 4 shall remain
operative and in full force and effect regardless of any termination of this
Agreement.
5. INDEMNIFICATION.
(a) Indemnification By The Company. The Company shall indemnify
and hold harmless each Holder, the directors, officers, employees and agents of
each such Holder and each Person, if any, who controls any such Holder (within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act) from and against all losses, liabilities, damages and expenses
(including without limitation, any reasonable legal or other expenses incurred
in connection with defending or investigating any such action or claim)
(collectively, "Losses"), arising out of or based upon 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 arising
out of or based upon 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, in light of the circumstances under which they were
made, except insofar as such Losses arise out of or are based upon information
relating to any Holder furnished to the Company in writing by such Holder
expressly for use therein; and provided further, that the Company will not be
liable to any Holder with respect to any such untrue statement or omission made
in any preliminary Prospectus that is corrected in a final Prospectus (or any
amendment or supplement thereto) if the person asserting any such loss, claim,
damage or liability purchased Notes or Common Stock but was not sent or given a
copy of the final Prospectus (as amended or supplemented) in any case where such
delivery of the final Prospectus (as amended or supplemented) was required by
the Securities Act, unless such failure to deliver the Prospectus (as amended or
supplemented) was a result of noncompliance by the Company with Section 3
hereof. The Company shall also indemnify each underwriter, their officers and
directors, and each Person who controls such Person (within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same
extent and with the same limitations as provided above with respect to the
indemnification of the Holders of Registrable Securities.
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(b) Indemnification By Holder of Registrable Securities. Each
Holder, agrees severally and not jointly to indemnify and hold harmless the
Company, the directors, officers, employees and agents of each such Holder 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), from and
against all Losses arising out of or based upon any untrue statement of a
material fact contained in any Registration Statement or 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, in light of
the circumstances under which they were made, to the extent, but only to the
extent, that such untrue statement or omission is contained in any information
relating to such Holder 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, plus interest if such is awarded to any Purchaser from such Holder.
(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 Section 5(a) or 5(b) hereof, such Person (the "Indemnified Party") shall
promptly notify the Person against whom such indemnity may be sought (the
"Indemnifying Party") in writing, but failure so to notify an Indemnifying Party
shall not relieve such Indemnifying Party from any liability hereunder to the
extent it is not materially prejudiced as a result thereof. The Indemnifying
Party, upon request of the Indemnified Party, shall retain counsel 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 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, (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, or (iii) the Indemnifying Party shall not have
employed counsel satisfactory to the Indemnified Party to represent the
Indemnified Party within a reasonable time after notice of commencement of the
action. 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 indemnified parties under Section 5(a) or 5(b) hereof who are parties to
such proceeding or proceedings, and that all such fees and expenses shall be
reimbursed as they are incurred. 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
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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 5 is unavailable to an Indemnified Party under Section 5(a) or 5(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 Indemnifying Parties on the one hand and the Indemnified Party or Indemnified
Parties an 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 Indemnifying Party or Indemnified Parties on the one
hand and of the Indemnified Party or Indemnifying 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 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 them 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 5(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 legal or other expenses
reasonably incurred by such Indemnified Party in connection with investigating
or defending any such action or claim. Notwithstanding this Section 5(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
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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 indemnity and contribution provisions contained in this Section 5
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 Holder or any Person 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.
6. 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 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. Notwithstanding the foregoing, nothing in this Section 6 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 the appropriate SEC Registration Statement form permitting
registration of the Registrable Securities for resale by the Holders thereof in
the manner or manners designated by them.
7. 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. 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 entered into
as of the date hereof, and shall not enter into on or after the date hereof, any
agreement with respect to its
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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.
(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 Registrable Securities. 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 so sold; 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:
(x) 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 7(e);
(y) if to the Company, to:
Tekelec
76580 West Agoura Road
Calabasas, CA 91302
Attention: Chief Executive Officer
Corporate Secretary
Facsimile No.: (818) 880-0176
with a copy to:
Bryan Cave LLP
One Metropolitan Square
211 North Broadway, Suite 3600
St. Louis, MO 63102-2750
Attention: J. Mark Klamer
Facsimile No.: (314) 259-6580
and
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(z) if to the Special Counsel to:
Gray Cary Ware & Freidenrich LLP
4365 Executive Drive, Suite 1600
San Diego, CA 92121
(858) 677-1400
Attention: Scott M. Stanton, Esq.
Facsimile No.: (858) 677- 1477
or to such other address as such Person may have furnished to the other Persons
identified in this Section 7(d) in writing in accordance herewith.
Copies of all notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee under the
Indenture at the address specified in the Indenture.
(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
Registrable 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.
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(j) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF CALIFORNIA 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 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 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. Except as provided in the
Purchase Agreement and the Indenture, 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 securities sold pursuant to the Purchase Agreement and the Indenture. This
Agreement supersedes all prior agreements and understandings among the parties
with respect to such subject matter.
(m) Attorneys' Fees. In any action or proceeding brought to
enforce any 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 best 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 2(d), 4 or 5 hereof,
each of which shall remain in effect in accordance with their terms.
(p) Third Party Beneficiaries. The Company and the Initial
Purchasers agree that each Holder shall be a third party beneficiary of this
Agreement.
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IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first stated above.
TEKELEC
By: /s/ Michael Margolis
--------------------------------------
Michael Margolis,
President and Chief Executive Officer
Accepted as of the date first stated
above:
DEUTSCHE BANK SECURITIES INC.
WARBURG DILLON READ LLC
By: Deutsche Bank Securities Inc.
By: /s/ David DiPietro
--------------------------------------
Authorized Signatory
Name: David DiPietro
Title: Managing Director