Exhibit 4.8
REGISTRATION RIGHTS AGREEMENT
among
SANDISK CORPORATION
as Issuer,
and
MORGAN STANLEY & CO. INCORPORATED
and
ABN AMRO ROTHSCHILD LLC
as Initial Purchasers
Dated as of December 24, 2001
REGISTRATION RIGHTS AGREEMENT dated as of December 24, 2001 among SanDisk
Corporation, a Delaware corporation (the "Company"), and Morgan Stanley & Co.
Incorporated and ABN AMRO Rothschild LLC (the "Initial Purchasers") pursuant to
the Purchase Agreement dated December 19, 2001 (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 beneficial owners (including the
Initial Purchasers) from time to time of the Notes (as defined herein) and the
beneficial owners from time to time of the Underlying Common Stock (as defined
herein) issued upon conversion of the Notes (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 Date" has the meaning set forth in
Section 2(d) hereof.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday that
is not a day on which banking institutions in The City of New York are
authorized or obligated by law or executive order to close.
"Common Stock" means the shares of common stock, par value $0.001, of the
Company 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 such term in the Indenture.
"Damages Accrual Period" has the meaning set forth in Section 2(e) hereof.
"Damages Payment Date" means each May 15 and November 15.
"Deferral Notice" has the meaning set forth in Section 3(i) hereof.
"Deferral Period" has the meaning set forth in Section 3(i) hereof.
"Effectiveness Deadline Date" has the meaning set forth in Section 2(a) hereof.
"Effectiveness Period" means the period commencing on the date hereof and ending
on the date that all Registrable Securities have ceased to be Registrable
Securities.
"Event" has the meaning set forth in Section 2(e) hereof.
"Event Date" has the meaning set forth in Section 2(e) hereof.
"Event Termination Date" has the meaning set forth in Section 2(e) hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the SEC promulgated thereunder.
"Filing Deadline Date" 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 December 24, 2001, between the
Company and The Bank of New York, as trustee, pursuant to which the Notes are
being issued.
"Initial Purchasers" means Morgan Stanley & Co. Incorporated and ABN AMRO
Rothschild LLC.
Initial Shelf Registration Statement" has the meaning set forth in Section 2(a)
hereof.
"Issue Date" means the first date of original issuance of the Notes.
"Liquidated Damages Amount" has the meaning set forth in Section 2(e) hereof.
"Losses" has the meaning set forth in Section 6 hereof.
"Material Event" has the meaning set forth in Section 3(i) hereof.
"Notes" means the 4-1/2% Convertible Subordinated Notes Due 2006 of the Company
to be purchased pursuant to the Purchase Agreement.
"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 issued December 19, 2001 relating to the Notes.
"Notice Holder" means, on any date, any Holder that has delivered a Notice and
Questionnaire to the Company on or prior to such date.
"Purchase Agreement" has the meaning set forth in the preamble hereof.
"Prospectus" means the prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated under the Securities Act), as
amended or supplemented by any amendment or prospectus supplement, including
post-effective amendments, and all materials incorporated by reference or
explicitly deemed to be incorporated by reference in such Prospectus.
"Record Holder" means (i) with respect to any Damages Payment Date relating to
any Notes as to which any such Liquidated Damages Amount has accrued, the holder
of record of such Note on the record date with respect to the interest payment
date under the Indenture on which such Damages Payment Date shall occur and (ii)
with respect to any Damages Payment Date relating to the Underlying Common Stock
as to which any such Liquidated Damages Amount has accrued, the registered
holder of such Underlying Common Stock fifteen (15) days prior to such Damages
Payment Date.
"Registrable Securities" means the Notes until such Notes have been converted
into or exchanged for the Underlying Common Stock and, at all times subsequent
to any such conversion or exchange 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 the Registration Statement covering it, (ii) expiration of the
holding period that would be applicable thereto, under Rule 144(k) (or any
successor provision) without regard to whether such holder is an affiliate of
the Company for purposes of such analysis or (iii) its sale to the public
pursuant to Rule 144 (or any similar provision then in force, 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 are removed or
removable in accordance with the terms of the Indenture or such legend, as the
case may be.
"Registration Expenses" has the meaning set forth in Section 5 hereof.
"Registration Statement" means any registration statement of the Company that
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 materials incorporated by reference or explicitly deemed to be
incorporated by reference in such registration statement.
"Restricted Securities" means "Restricted Securities" as defined in Rule 144.
"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 Act" means the Securities Act of 1933, as amended, and the rules and
regulations promulgated by the SEC thereunder.
"Shelf Registration Statement" has the meaning set forth in Section 2(a) hereof.
"Special Counsel" means Davis Polk & Wardwell or one such other successor
counsel as shall be specified by the Holders of a majority of the Registrable
Securities, but which may, with the written consent of the Initial Purchasers
(which shall not be unreasonably withheld), be another nationally recognized law
firm experienced in securities law matters designated by the Company, the
reasonable fees and expenses of which will be paid by the Company pursuant to
Section 5 hereof.
"Subsequent Shelf Registration Statement" has the meaning set forth in
Section 2(b) hereof.
"TIA" means the Trust Indenture Act of 1939, as amended.
"Trustee" means the Trustee under the Indenture.
"Underlying Common Stock" means the Common Stock into which the Notes are
convertible or issued upon any such conversion.
Section 2. Shelf Registration. (a) 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 April 8, 2002 (the "Filing Deadline Date"), a Registration Statement for an
offering to be made on a delayed or continuous basis pursuant to Rule 415 of the
Securities Act (a "Shelf Registration Statement") registering the resale from
time to time by Holders thereof of all of the Registrable Securities (the
"Initial Shelf Registration Statement"). The Initial Shelf Registration
Statement shall be on Form S-3 or another appropriate form permitting
registration of such Registrable Securities for resale by such Holders in
accordance with the methods of distribution elected by the Holders and set forth
in the Initial Shelf Registration Statement. The Company shall use its
commercially reasonable efforts to cause the Initial Shelf Registration
Statement to be declared effective under the Securities Act as promptly as is
practicable but in any event by the date (the "Effectiveness Deadline Date")
that is one hundred eighty (180) days after the Issue Date, and to keep the
Initial Shelf Registration Statement (or any Subsequent Shelf Registration
Statement) continuously effective under the Securities Act until the expiration
of the Effectiveness Period. At the time the Initial Shelf Registration
Statement is declared effective, each Holder that became a Notice Holder on or
prior to the date ten (10) Business Days prior to such time of effectiveness
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 such Prospectus to purchasers of Registrable Securities in accordance
with applicable law. None of the Company's security holders (other than the
Holders of Registrable Securities) shall have the right to include any of the
Company's securities in the Shelf Registration Statement unless the Holders of
Registrable Securities have first had an opportunity to include all Registrable
Securities held by such Holders in such Shelf Registration Statement.
(b) If the Initial Shelf Registration Statement or any Subsequent
Shelf Registration
Statement 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 commercially
reasonable efforts to obtain the prompt withdrawal of any order suspending the
effectiveness thereof, and in any event shall within thirty (30) days of such
cessation of effectiveness amend the Shelf Registration Statement in a manner
reasonably expected to obtain the withdrawal of the order suspending the
effectiveness thereof, or file an additional Shelf Registration Statement
covering all of the securities that as of the date of such filing are
Registrable Securities (a "Subsequent Shelf Registration Statement"). If a
Subsequent Shelf Registration Statement is filed, the Company shall use its
commercially reasonable efforts to cause the Subsequent Shelf Registration
Statement to become effective as promptly as is practicable after such filing
and to keep such Registration Statement (or subsequent Shelf Registration
Statement) continuously effective until the end of the Effectiveness Period.
(c) The Company shall supplement and amend 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,
if required by the Securities Act or as reasonably requested by the Initial
Purchaser or by the Trustee on behalf of the Holders of the Registrable
Securities covered by such Shelf Registration Statement.
(d) Each Holder agrees that if such Holder wishes to sell Registrable
Securities pursuant to a Shelf Registration Statement and related Prospectus, it
will do so only in accordance with this Section 2(d) and Section 3(i). Each
Holder wishing to sell Registrable Securities pursuant to a Shelf Registration
Statement and related Prospectus agrees to deliver a Notice and Questionnaire to
the Company at least three (3) Business Days 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) five (5)
Business Days after such date or (y) five (5) Business Days after the expiration
of any Deferral Period in effect when the Notice and Questionnaire is delivered
or put into effect within five (5) 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 any other required document so that the
Holder delivering such Notice and Questionnaire is named as a selling
securityholder in the 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 the Shelf Registration Statement, use its commercially
reasonable efforts to cause such post-effective amendment to be
declared effective under the Securities Act as promptly as is
practicable, but in any event by the date (the "Amendment Effectiveness
Deadline Date") that is forty-five (45) days after the date such
post-effective amendment is required by this clause to be filed;
(ii) 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 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(i). 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 Registration Statement or related Prospectus and
(ii) the Amendment Effectiveness Deadline Date shall be extended by up to ten
(10) Business Days from the expiration of a Deferral Period (and the Company
shall incur no obligation to pay Liquidated Damages during such extension) if
such Deferral Period shall be in effect on the Amendment Effectiveness Deadline
Date.
(e) The parties hereto agree that the Holders of Registrable Securities
will suffer damages, and that it would not be feasible to ascertain the extent
of such damages with precision, if
(i) the Initial Shelf Registration Statement has not been filed on
or prior to the Filing Deadline Date,
(ii) the Initial Shelf Registration Statement has not been declared
effective under the Securities Act on or prior to the Effectiveness
Deadline Date,
(iii) the Company has failed to perform its obligations set forth
in Section 2(d) within the time period required therein,
(iv) any 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 Date,
(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(i) hereof or
(vi) the number of Deferral Periods in any period exceeds the number
permitted in respect of such period pursuant to Section 3(i) hereof
Each event described in any of the foregoing clauses (i) through (vi) is
individually referred to herein as an "Event." For purposes of this Agreement,
each Event set forth above shall begin and end on the dates set forth in the
table set forth below:
- --------------------------------------------------------------------------------
Type of Beginning Ending
Event by Date Date
Clause ---- ----
------
(i) Filing Deadline Date the date the Initial Shelf
Registration Statement is
filed
(ii) Effectiveness Deadline the date the Initial Shelf
Date Registration Statement
becomes effective under
the Securities Act
(iii) the date by which the the date the Company
Company is required to performs its obligations set
perform its obligations forth in Section 2(d)
under Section 2(d)
(iv) the Amendment the date the applicable
Effectiveness Deadline post-effective amendment
Date to a Shelf Registration
Statement becomes
effective under the
Securities Act
(v) the date on which the termination of the Deferral
aggregate duration of Period that caused the limit
Deferral Periods in any on the aggregate duration
period exceeds the number of Deferral Periods to be
of days permitted by exceeded
Section 3(i)
(vi) the date of commencement termination of the Deferral
of a Deferral Period that Period that caused the
causes the number of number of Deferral Periods
Deferral Periods to exceed to exceed the number
the number permitted by permitted by Section 3(i)
Section 3(i)
For purposes of this Agreement, Events shall begin on the dates set forth in the
table above and shall continue until the ending dates set forth in the table
above.
Commencing on (and including) any date that an Event has begun and ending on
(but excluding) the next date on which there are no Events that have occurred
and are continuing (a "DAMAGES ACCRUAL PERIOD"), the Company shall pay, as
liquidated damages and not as a penalty, to Record Holders of Registrable
Securities an amount (the "LIQUIDATED DAMAGES AMOUNT") accruing, for each day in
the Damages Accrual Period, (i) in respect of any Note, at a rate per annum
equal to .5% of the aggregate principal amount of such Note and (ii) in respect
of each share of Underlying Common Stock at a rate per annum equal to .5% on the
Conversion Price on such date; provided that in the case of a Damages Accrual
Period that is in effect solely as a result of an Event of the type described in
clause (iii) or (iv) of the preceding paragraph, such Liquidated Damages Amount
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 Event. In calculating
the Liquidated Damages Amount on any date on which no Notes are outstanding,
the Conversion Price and the Liquidated Damages Amount shall be calculated as
if the Notes 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 Events.
The Liquidated Damages Amount shall accrue from the first day of the applicable
Damages Accrual Period, and shall be payable on each Damages Payment Date during
the Damage Accrual Period (and on the Damages Payment Date next succeeding the
end of the Damages Accrual Period if the Damage Accrual Period does not end on a
Damages Payment Date) to the Record Holders of the Registrable Securities
entitled thereto; provided that any Liquidated Damages Amount accrued with
respect to any Note or portion thereof redeemed by the Company on a redemption
date or converted into Underlying Common Stock on a conversion date prior to the
Damages Payment Date, shall, in any such event, be paid instead to the Holder
who submitted such Note or portion thereof for redemption or conversion on the
applicable redemption date or conversion date, as the case may be, on such date
(or promptly following the conversion date, in the case of conversion); provided
further, that, in the case of an Event 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 only to the Holders entitled thereto pursuant to such first
paragraph by check mailed to the address set forth in the Notice and
Questionnaire delivered by such Holder. The Trustee shall be entitled, on behalf
of registered holders of Notes or Underlying Common Stock, to seek any available
remedy for the enforcement of this Agreement, including for the payment of such
Liquidated Damages Amount. Notwithstanding the foregoing, the parties agree that
the sole damages payable for a violation of the terms of this Agreement with
respect to which liquidated damages are expressly provided shall be such
liquidated damages. Nothing shall preclude 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 provided for in this
Section 2(e) constitute 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) Prepare and file with the SEC a Registration Statement or
Registration Statements on any appropriate form under the Securities Act
available for the sale of the Registrable Securities by the Holders
thereof in accordance with the intended method or methods of distribution
thereof, and use its commercially reasonable efforts to cause each such
Registration Statement to become effective and remain effective as
provided herein; provided that before filing any 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 and use its commercially reasonable efforts to reflect in
each such document when so filed with the SEC such comments as the
Initial Purchaser or the Special Counsel, if any, reasonably shall
propose within five (5) Business Days of the delivery of such copies to
the Initial Purchaser and the Special Counsel.
(b) Prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary to keep
such Registration Statement continuously effective for the applicable
period specified in Section 2(a); 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 commercially
reasonable efforts to comply with the provisions of the Securities Act
applicable to it with respect to the disposition of all securities
covered by such Registration Statement during the Effectiveness Period in
accordance with the intended methods of disposition by the sellers
thereof set forth in such Registration Statement as so amended or such
Prospectus as so supplemented.
(c) As promptly as practicable give notice to the Notice Holders,
the Initial Purchaser and the Special Counsel, (i) when any Prospectus,
prospectus supplement, Registration Statement or 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 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 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 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 a Material Event and (vi) of the determination by the Company that a
post-effective amendment to a Registration Statement will be filed with
the SEC, which notice may, at the discretion of the Company (or as
required pursuant to Section 3 (i)), state that it constitutes a Deferral
Notice, in which event the provisions of Section 3(i) shall apply.
(d) Use its commercially reasonable efforts to obtain the withdrawal
of any order suspending the effectiveness of a Registration Statement or
the lifting of any suspension of the qualification (or exemption from
qualification) of any of the Registrable Securities for sale in any
jurisdiction in which they have been qualified for sale, in either case
at the earliest possible moment, and provide immediate notice to each
Notice Holder and the Initial Purchaser of the withdrawal of any such
order.
(e) If reasonably requested by the Initial Purchaser or any Notice
Holder, as
promptly as practicable incorporate in a prospectus supplement or
post-effective amendment to a Registration Statement such information as
the Initial Purchaser and the Special Counsel, or such Notice Holder
shall on the basis of an opinion of nationally- recognized counsel
experienced in such matters, reasonably determine to be required to be
included therein by applicable law and make any required filings of such
prospectus supplement or post-effective amendment.
(f) As promptly as practicable furnish to each Notice Holder, the
Special Counsel and the Initial Purchaser, without charge, at least one
(1) conformed copy of the Registration Statement and any amendment
thereto, including exhibits and all documents incorporated or deemed to
be incorporated therein by reference.
(g) 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 Registration
Statement, 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
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
and sale of the Registrable Securities covered by such Prospectus or any
amendment or supplement thereto in the manner set forth therein.
(h) Prior to any public offering of the Registrable Securities
pursuant to a Registration Statement, use its commercially reasonable
efforts to register or qualify or cooperate with the Notice 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 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 the Shelf Registration Statement, use
its commercially reasonable 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 relevant
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.
(i) Upon (A) the issuance by the SEC of a stop order suspending the
effectiveness of the Shelf Registration Statement or the initiation of
proceedings with
respect to the 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 any 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 the Shelf
Registration Statement and the related Prospectus for a discrete period
of time:
(i) in the case of clause (B) above, subject to the next
sentence, as promptly as practicable prepare and file, if necessary
pursuant to applicable law, a post-effective amendment to such
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
Registration Statement and Prospectus so that such Registration
Statement 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 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 Registration Statement, subject to the next sentence,
use its commercially reasonable 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 the Shelf Registration
Statement is suspended (a "DEFERRAL NOTICE"), which notice need not
specify the nature of the event giving rise to the suspension, and,
upon receipt of any Deferral Notice, each Notice Holder agrees not
to sell any Registrable Securities pursuant to the 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, and has received copies of any additional or
supplemental filings that are incorporated or deemed incorporated by
reference in such Prospectus.
The Company will use its commercially reasonable 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(i) to suspend the
availability of the Shelf Registration Statement or any Prospectus, without
incurring or accruing any obligation to pay liquidated damages pursuant to
Section 2(e), no more than two (2) times in any three month period or three (3)
times in any twelve month period, and any such period during which the
availability of the 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; provided that the
aggregate duration of any Deferral Periods shall 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 twelve (12) month period; provided that in
the case of a Material Event relating to an acquisition or 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.
(j) If requested in writing in connection with a disposition of
Registrable Securities pursuant to a Registration Statement, make
reasonably available for inspection during normal business hours by a
single 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 (the "Inspector"), all
relevant financial and other records and pertinent corporate documents
and properties of the Company and its subsidiaries, and cause the
appropriate officers, directors and employees of the Company and its
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 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 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 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 known or suspected to be bound by a
confidentiality agreement; provided further, however, that prior notice
shall be provided as soon as practicable to the Company of the potential
disclosure of any information by such Inspector pursuant to clauses (i)
or (ii) to permit the Company to obtain a protective order and the
Inspector shall cooperate in
good faith in assisting the Company in obtaining such order or waive the
provisions of this paragraph (j); and provided further that the foregoing
inspection and information gathering shall be coordinated on behalf of
all the Notice Holders and the other parties entitled thereto by the
counsel referred to in Section 5.
(k) Comply in all material respects 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
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.
(l) Unless in book-entry from, cooperate with each Notice Holder to
facilitate the timely preparation and delivery of certificates
representing Registrable Securities sold or to be sold pursuant to a
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 reasonably request in writing at least
two (2) Business Day prior to any sale of such Registrable Securities.
(m) Provide a CUSIP number for all Registrable Securities covered by
each Registration Statement not later than the effective date of such
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.
(n) Cooperate and assist in any filings required to be made with the
National Association of Securities Dealers, Inc.
(o) 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 Reuters Economic Services
and Bloomberg Business News.
Section 4. Holder's Obligations. 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 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 either by statement or omission and any
other information regarding such Notice Holder and the distribution of such
Registrable Securities 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 correct 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.
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 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 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 Registration Statement may designate), (ii) reasonable
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
Registration Statement or Prospectus delivered to any Holders hereunder, (iv)
reasonable fees and disbursements of counsel for the Company and the Special
Counsel in connection with the Shelf Registration Statement (provided that the
Company shall not be liable for the fees and expenses of more than one separate
firm for all parties participating in any transaction hereunder), (v) reasonable
fees and disbursements of the Trustee and its counsel and of the registrar and
transfer agent for the Common Stock and (vi) Securities Act liability insurance
obtained by the Company in its sole discretion. 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 selling expenses (including discounts,
commissions and transfer taxes) and all registration expenses to the extent
required by applicable law.
Section 6. Indemnification.
(a) Indemnification by the Company. The Company shall indemnify and hold
harmless each Notice Holder and 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) 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) (collectively, "Losses") caused by any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement or any amendment thereof, any preliminary prospectus or the 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 in light of the circumstances under
which they were made not misleading, except insofar as such Losses are caused by
any such untrue statement or omission or alleged untrue statement or omission
based upon information relating to the Holders furnished to the Company in
writing by a Holder expressly for use therein; provided, however, that the
Company shall not be liable to any Holder under the indemnity agreement of this
paragraph with respect to any Prospectus to the extent that any such Losses
result from the fact that such Holder sold Registrable Securities under a
Registration Statement to a Person as to whom it shall be established that there
was not sent or given, at or prior to the written confirmation of such sale, a
copy of the Prospectus (as then amended or supplemented if the Company shall
have furnished such Holder with such amendment or supplement thereto on a timely
basis), in any case where such delivery is required by applicable law and the
Losses result from an untrue statement or omission of a material fact contained
in the Prospectus which was corrected (including through an amendment or
supplement if the Company shall have furnished such Holder with such amendment
or supplement, as the case may be, on a timely basis).
(b) Indemnification by Holders. Each Holder agrees severally and not
jointly to indemnify and hold harmless the Company, the directors of the
Company, the officers of the Company who sign the 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, from and against all Losses caused by any untrue statement or alleged
untrue statement of a material fact contained in any Registration Statement or
any amendment thereof, any preliminary prospectus or the Prospectus (as amended
or supplemented if the Company shall have furnished any amendments or
supplements thereto) 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, but only with reference to information
relating to such Holder furnished to the Company in writing by such Holder
expressly for use in such Registration Statement, any preliminary prospectus,
the Prospectus or any amendments or supplements 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 Registration Statement giving rise to such indemnification
obligation.
(c) Conduct of Indemnification Proceedings. In case any proceeding
(including any governmental investigation) shall be instituted involving any
person in respect of which indemnity may be sought pursuant to 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 fees and disbursements of such counsel related to
such proceeding. In any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses of such counsel shall
be at the expense of such indemnified party unless (i) the indemnifying party
and the indemnified party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties
by the same counsel would be inappropriate due to actual or potential differing
interests between them. It is understood that the indemnifying party shall not,
in respect of the legal expenses of any indemnified party in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Holders and all persons, if any, who control any Holder within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act and (ii) the fees and expenses of more than one separate firm (in
addition to any local counsel) for the Company, its directors, its officers who
sign the Registration Statement and each person, if any, who controls the
Company within the meaning of either such Section, and that all such fees and
expenses shall be reimbursed as they are incurred. In the case of any such
separate firm for the Holders and such control persons of any Holders, such firm
shall be designated in writing by the Holders of a majority (with Holders of
Notes deemed to be the Holders, for purposes of determining such majority, of
the number of shares of Underlying Common Stock into which such Notes are or
would be convertible or exchangeable as of the date on which such designation is
made) of the Registrable Securities covered by the Registration Statement held
by Holders that are indemnified parties pursuant to Section 6(a). In the case of
any such separate firm for the Company, and such directors, officers and control
persons of the Company, such firm shall be designated in writing by the Company.
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 and non-appealable 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 final and non-appealable judgment. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all liability
on claims that are the subject matter of such proceeding and does not include a
statement as to, or an admission of, fault, culpability or a failure to act by
or on behalf of any Indemnified Party.
(d) Contribution. 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 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 (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 from the offering of the
Registrable Securities 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 parties on the one hand and of the
indemnified party or parties on the other hand in connection with the statements
or omissions that resulted in such Losses, as well as any other relevant
equitable considerations. Benefits received by the Company shall be deemed to be
equal to the total net proceeds from the initial placement pursuant to the
Purchase Agreement (before deducting expenses) of the Registrable Securities to
which such Losses relate. Benefits received by any Holder shall be deemed to be
equal to the value of receiving Registrable Securities that are registered under
the Securities Act. 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 or equitable if contribution
pursuant to this Section 6(d) were determined by pro rata allocation (even if
--- ----
the Holders were treated as one entity for such purpose) or by any other method
of allocation that does not take account of 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 6(d), an indemnifying party that
is a selling Holder 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 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. 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 any indemnified party at law or in equity.
(e) The indemnity, contribution and expense reimbursement obligations of
the parties hereunder shall be in addition to any liability any indemnified
party may otherwise have 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 Holder or any person controlling any Holder, or the Company, or the
Company's 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 any section of 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 Notes deemed to be the Holders, for
purposes of this Section, of the number of outstanding shares of Underlying
Common Stock into which such Notes are or would be convertible or exchangeable
as of the date on which such consent is requested). Notwithstanding the
foregoing, a waiver or consent to depart from the (i) provisions hereof with
respect to a matter that relates exclusively to the rights of Holders whose
securities are being sold pursuant to a 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 Registration Statement and (ii) the Company's
obligations under Section 2(d) hereof, including the duration of any Damages
Accrual Period or the determination of any Liquidated Damages Amount with
respect thereto pursuant to Section 2(e)(3), may be given by Holders of all the
Registrable Securities affected thereby; 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. 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 guaranteeing overnight delivery or by first-class mail, return
receipt requested, and shall be deemed given (i) when made, if made by hand
delivery, (ii) one (1) Business Day following confirmation, if made by
telecopier, (iii) one (1) Business Day after being deposited with such courier,
if made by overnight courier or (iv) three (3) Business Days following deposit,
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:
SanDisk Corporation
111 Java Street
Sunnyvale, CA 94089
Attention: Charles Van Orden
Facsimile No.: (408) 548-0385
and
Brobeck, Phleger & Harrison LLP
2200 Geng Road
Two Embarcadero Place
Palo Alto, CA 94303
Attention: Tim Curry
Facsimile No.: (650) 496-2885
(iii) if to the Initial Purchaser, to:
Morgan Stanley & Co. Incorporated
ABN AMRO Rothschild LLC
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York
Attention: Equity Capital Markets
Facsimile No.: (212) 761-0538
and
Davis Polk & Wardwell
1600 El Camino Real
Menlo Park, CA 94025
Attention: Bruce Dallas
Facsimile No.: (650) 752-2116
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 and any person acting in concert
with the Company 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.
(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.
(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 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 and concurrent
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 written 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.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
SANDISK CORPORATION
By /s/ Frank A. Calderoni
----------------------
Name: Frank A. Calderoni
Title: Senior Vice President
Finance and Administration
Confirmed and accepted as of
the date hereof:
Morgan Stanley & Co. Incorporated
ABN AMRO Rothschild LLC
By: Morgan Stanley & Co. Incorporated
By:/s/ John R. Christiansen
------------------------
Name: John R. Christiansen
Title: Vice President