EXHIBIT 4.4
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT is made and entered into as of June
20, 2001 by and between ResMed Inc., a Delaware corporation (the "Company"), and
Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated,
Deutsche Banc Alex. Brown Inc., William Blair & Company, L.L.C., Macquarie Bank
Limited and UBS Warburg LLC (collectively, the "Initial Purchasers") pursuant to
the Purchase Agreement, dated as of June 14, 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 the benefit of
the Initial Purchasers and (ii) for the benefit of the beneficial owners
(including the Initial Purchasers) from time to time of the Securities (as
defined herein) and the beneficial owners from time to time of the Underlying
Common Stock (as defined herein) issued upon conversion of the Securities (each
of the foregoing a "Holder" and together the "Holders"), as follows:
Section 1. Definitions. Capitalized terms used herein without
definition shall have their respective meanings set forth in the Purchase
Agreement. As used in this Agreement, the following terms shall have the
following meanings:
"Affiliate" means, with respect to any specified person, an
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"affiliate," as defined in Rule 144, of such person.
"Amendment Effectiveness Deadline Date" has the meaning specified in
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Section 2(d) hereof.
"Applicable Conversion Price" means the Principal Amount as of such
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date of determination divided by the Conversion Rate in effect as of such date
of determination or, if no Securities are then outstanding, the Conversion Rate
that would be in effect were Securities then outstanding.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
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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 any shares of Common Stock, par value $0.004 per
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share, 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 Rate" has the meaning assigned to that term in the
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Indenture.
"Damages Accrual Period" has the meaning specified in Section 2(e)
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hereof.
"Damages Payment Date" means each June 20 and December 20 in the case
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of Securities and the Underlying Common Stock.
"Deferral Notice" has the meaning specified in Section 3(i) hereof.
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"Deferral Period" has the meaning specified in Section 3(i) hereof.
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"Effectiveness Deadline Date" has the meaning specified in Section
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2(a) hereof.
"Effectiveness Period" means the period of two years from the Issue
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Date or such shorter period that will terminate upon the earliest of the
following: (A) when all the Securities covered by the Shelf Registration
Statement have been sold pursuant to the Shelf Registration Statement, (B) when
all shares of Common Stock issued upon conversion of any such Securities that
had not been sold pursuant to the Shelf Registration Statement have been sold
pursuant to the Shelf Registration Statement and (C) when, in the written
opinion of counsel to the Company, which opinion may be rendered by the
Company's general counsel, all outstanding Registrable Securities held by
persons which are not affiliates of the Company may be resold without
registration under the Securities Act pursuant to Rule 144(k) under the
Securities Act or any successor provision thereto.
"Event" has the meaning specified in Section 2(e) hereof.
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"Event Date" has the meaning specified in Section 2(e) hereof.
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"Event Termination Date" has the meaning specified in Section 2(e)
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hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
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and the rules and regulations of the SEC promulgated thereunder.
"Filing Deadline Date" has the meaning specified in Section 2(a)
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hereof.
"Holder" has the meaning specified in the second paragraph of this
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Agreement.
"Indenture" means the Indenture dated as of the date hereof between
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the Company and the Trustee, pursuant to which the Securities are being issued.
"Initial Purchasers" has the meaning specified in the first paragraph
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of this Agreement.
"Initial Shelf Registration Statement" has the meaning specified in
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Section 2(a) hereof.
"Issue Date" means June 20, 2001.
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"Liquidated Damages Amount" has the meaning specified in Section 2(e)
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hereof.
"Material Event" has the meaning specified in Section 3(i) hereof.
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"Notice and Questionnaire" means a written notice delivered to the
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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 June 14, 2001 relating to the Securities.
"Notice Holder" means, on any date, any Holder that has delivered a
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Notice and Questionnaire to the Company on or prior to such date.
"Principal Amount" means, with respect to the Securities, the
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principal amount due on the maturity date as shown on such Securities.
"Prospectus" means the prospectus included in any Registration
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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.
"Purchase Agreement" has the meaning specified in the first paragraph
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of this Agreement.
"Record Holder" means, with respect to any Damages Payment Date
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relating to any Securities or Underlying Common Stock as to which any Liquidated
Damages Amount has accrued, the registered holder of such Securities or
Underlying Common Stock, as the case may be, 15 days prior to the next
succeeding Damages Payment Date.
"Registrable Securities" means the Securities and the Underlying
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Common Stock, until the Securities have been converted into or exchanged for the
Underlying Common Stock, and, at all times subsequent to any such conversion or
exchange, any Underlying Common Stock into or for which such Securities have
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, 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) were it not held by an Affiliate of the Company or (iii) its sale to the
public pursuant to Rule 144.
"Registration Expenses" has the meaning specified in Section 5 hereof.
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"Registration Statement" means any registration statement of the
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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" has the meaning assigned to that term in Rule
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144.
"Rule 144" means Rule 144 under the Securities Act, as such Rule may
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be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
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"Rule 144A" means Rule 144A under the Securities Act, as such Rule may
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be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
"SEC" means the U.S. Securities and Exchange Commission and any
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successor agency.
"Securities" means the 4% Convertible Subordinated Notes due 2006 of
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the Company to be purchased pursuant to the Purchase Agreement.
"Securities Act" means the Securities Act of 1933, as amended, and the
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rules and regulations promulgated by the SEC thereunder.
"Shelf Registration Statement" has the meaning specified in Section
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2(a) hereof.
"Subsequent Shelf Registration Statement" has the meaning specified in
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Section 2(b) hereof.
"TIA" means the Trust Indenture Act of 1939, as amended.
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"Trustee" means American Stock Transfer & Trust Company (or any
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successor entity), the Trustee under the Indenture.
"Underlying Common Stock" means the Common Stock into which the
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Securities are convertible or issued upon any such conversion.
Section 2. Shelf Registration. (a) The Company shall prepare and file
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or cause to be prepared and filed with the SEC, as soon as practicable but in
any event by the date (the "Filing Deadline Date") which is the later of (i)
ninety (90) days after the Issue Date and (ii) October 1, 2001, 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 best 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
and fifty (150) 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; provided, however, that no Holder shall be entitled to
have the Registrable Securities held by it covered by such Shelf Registration
Statement unless such Holder shall have provided a Notice and Questionnaire in
accordance with Section 2(d) and is in compliance with Section 4. 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.
(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
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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 best 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 best 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, to the extent to which the Company does
not reasonably object, as reasonably requested by the Initial Purchasers or by
the Trustee on behalf of the registered Holders.
(d) Each Holder of Registrable Securities 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 of Registrable Securities 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; provided that, Holders of
Registrable Securities shall have at least twenty (20) Business Days from the
date on which the Notice and Questionnaire is first mailed to such Holders to
return a completed and signed Notice and Questionnaire to the Company. From and
after the date the Initial Shelf Registration Statement is declared effective,
the Company shall, as promptly as is practicable after the date a Notice and
Questionnaire is delivered, and in any event within five (5) Business Days after
such 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 security holder 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 best 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 thirty (30) 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
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expiration of the Deferral Period in accordance with Section 3(i), provided,
further, that if a Deferral Period is in effect on the Amendment Effectiveness
Deadline Date, then the Amendment Effectiveness Deadline Date shall be extended
by the number of days of such Deferral Period and the Company shall not incur
obligations to pay any Liquidated Damages during such extension, provided,
further, that if under applicable law the Company has more than one option as to
the type or manner of making any such filing, it will make the required filing
or filings in the manner or of a type that is reasonably expected to result in
the earliest availability of the Prospectus for effecting resales of Registrable
Securities. Notwithstanding anything contained herein to the contrary, the
Company shall be under no obligation to name any Holder that is not a Notice
Holder as a selling security holder in any Registration Statement or related
Prospectus; provided, however, that any Holder that becomes a Notice Holder
pursuant to the provisions of Section 2(d) of this Agreement (whether or not
such Holder was a Notice Holder at the time the Registration Statement was
declared effective) shall be named as a selling security holder in the
Registration Statement or related Prospectus in accordance with the requirements
of this Section 2(d).
(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) hereof within
the time period required therein, (iv) the Registration Statement ceases to be
effective or fails to be usable without being succeeded within five (5) Business
Days by a post-effective amendment or report filed with the SEC pursuant to the
Exchange Act that cures the failure of the Registration Statement to be
effective or usable, (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)
(each of the events of a type described in any of the foregoing clauses (i)
through (vi) are individually referred to herein as an "Event," and the day
following the Filing Deadline Date in the case of clause (i), the day following
the Effectiveness Deadline Date in the case of clause (ii), the date by which
the Company is required to perform its obligations set forth in Section 2(d) in
the case of clause (iii) (including the filing of any post-effective amendment
prior to the Amendment Effectiveness Deadline Date), (iv) the date by which the
Company is required to perform its obligations set forth in clause (iv) above,
the date on which the aggregate duration of Deferral Periods in any period
exceeds the number of days permitted by Section 3(i) hereof in the case of
clause (v), and the date of the commencement of a Deferral Period that causes
the limit on the number of Deferral Periods in any period under Section 3(i)
hereof to be exceeded in the case of clause (vi), being referred to herein as an
"Event Date"). Events shall be deemed to continue until the "Event Termination
Date," which shall be the following dates with respect to the respective types
of Events: the date the Initial Shelf Registration Statement is filed in the
case of an Event of the type described in clause (i), the date the Initial Shelf
Registration Statement is declared effective under the Securities Act in the
case of an Event of the type described in clause (ii), the date the Company
performs its obligations set forth in Section 2(d) in the case of an Event of
the type described in clause (iii) (including, without limitation, the date the
relevant post-effective amendment to the Shelf Registration Statement is
declared effective under the Securities Act), the date the Company performs its
obligations set forth in clause (iv)
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above in the case of an Event of the type described in clause (iv) above,
termination of the Deferral Period that caused the limit on the aggregate
duration of Deferral Periods in a period set forth in Section 3(i) to be
exceeded in the case of the commencement of an Event of the type described in
clause (v), and termination of the Deferral Period the commencement of which
caused the number of Deferral Periods in a period permitted by Section 3(i) to
be exceeded in the case of an Event of the type described in clause (vi).
Accordingly, commencing on (and including) any Event Date 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 agrees to pay, as
liquidated damages and not as a penalty, an amount (the "Liquidated Damages
Amount"), payable on the Damages Payment Dates to Record Holders of then
outstanding Securities that are Registrable Securities and of then outstanding
shares of Underlying Common Stock issued upon conversion of Securities that are
Registrable Securities, as the case may be, accruing, for each portion of such
Damages Accrual Period beginning on and including a Damages Payment Date (or, in
respect of the first time that the Liquidation Damages Amount is to be paid to
Holders on a Damages Payment Date as a result of the occurrence of any
particular Event, from the Event Date) and ending on but excluding the first to
occur of (A) the date of the end of the Damages Accrual Period or (B) the next
Damages Payment Date, at a rate per annum equal to one-quarter of one percent
(0.25%) for the first 90-day period from the Event Date, and thereafter at a
rate per annum equal to one-half of one percent (0.5%) of the aggregate
Principal Amount of such Securities or; in the case of Securities that have been
converted into or exchanged for Underlying Common Stock, the aggregate
Applicable Conversion Price of such shares of Underlying Common Stock, as the
case may be, in each case determined as of the Business Day immediately
preceding the next Damages Payment 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) of the immediately preceding paragraph, such
Liquidated Damages Amount shall be paid only to the Holders that have delivered
Notice 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;
provided further, that any Liquidated Damages Amount accrued with respect to any
Securities or portion thereof called for redemption 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 Securities 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).
Notwithstanding the foregoing, no Liquidated Damages Amounts 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. Following the cure
of all Events requiring the payment by the Company of Liquidated Damages Amounts
to the Holders of Registrable Securities pursuant to this Section, the accrual
of Liquidated Damages Amounts will cease (without in any way limiting the effect
of any subsequent Event requiring the payment of Liquidated Damages Amount by
the Company).
The Trustee shall be entitled, on behalf of Holders of Securities or
Underlying Common Stock, to seek any available remedy for the enforcement of
this Agreement, including for the payment of any Liquidated Damages Amount.
Notwithstanding the foregoing, the parties
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agree that the sole monetary damages payable for a violation of the terms of
this Agreement with respect to which liquidated damages are expressly provided
shall be such liquidated damages. Nothing shall preclude a Notice Holder or
Holder of Registrable Securities from pursuing or obtaining specific performance
or other equitable relief 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
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registration obligations of the Company under Section 2 hereof, the Company
shall:
(a) Before filing any Registration Statement or Prospectus or any
amendments or supplements thereto with the SEC, furnish to the Initial
Purchasers copies of all such documents proposed to be filed and use its best
efforts to reflect in each such document when so filed with the SEC such
comments as the Initial Purchasers reasonably shall propose within three (3)
Business Days of the delivery of such copies to the Initial Purchasers.
(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 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 and
the Initial Purchasers (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
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exemption from qualification of any of the Registrable Securities for sale in
any jurisdiction or the initiation or threatening of any proceeding for such
purpose, (v) of the occurrence of (but not the nature of or details concerning)
a Material Event (provided, however, that no notice by the Company shall be
required pursuant to this clause (v) in the event that the Company either
promptly files a Prospectus supplement to update the Prospectus or a Form 8-K or
other appropriate Exchange Act report that is incorporated by reference into the
Registration Statement, which, in either case, contains the requisite
information with respect to such Material Event that results in such
Registration Statement no longer containing any untrue statement of material
fact or omitting to state a material fact necessary to make the statements
contained therein not misleading) 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 best efforts to prevent the issuance, and if issued 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.
(e) If reasonably requested by the Initial Purchasers or any Notice
Holder, promptly incorporate in a Prospectus supplement or post-effective
amendment to a Registration Statement such information as the Initial Purchasers
or such Notice Holder shall, on the basis of an opinion of nationally-recognized
counsel experienced in such matters, determine to be required to be included
therein by applicable law and make any required filings of such Prospectus
supplement or such post-effective amendment; provided, that the Company shall
not be required to take any actions under this Section 3(e) that are not, in the
reasonable opinion of counsel for the Company, in compliance with applicable
law.
(f) Furnish to each Notice Holder and the Initial Purchasers without
charge, at least one (1) conformed copy of the Registration Statement and any
amendment thereto, including financial statements but excluding schedules, all
documents incorporated or deemed to be incorporated therein by reference and all
exhibits (unless requested in writing to the Company by such Notice Holder or
the Initial Purchasers, as the case may be).
(g) During the Effectiveness Period, deliver to each Notice Holder 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 the Shelf Registration Statement, register or qualify or cooperate
with the Notice Holders in
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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
best efforts to keep each such registration or qualification (or exemption
therefrom) effective during the Effectiveness Period in connection with such
Notice Holder's offer and sale of Registrable Securities pursuant to such
registration or qualification (or exemption therefrom) and do any and all other
acts or things 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 discretion of the Company,
makes it appropriate to suspend the availability of the Shelf Registration
Statement and the related Prospectus, (i) in the case of clause (B) above,
subject to the next sentence, promptly prepare and file 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 best efforts to cause it to be declared effective as promptly
as is reasonably practicable, and (ii) give notice to the Notice Holders that
the availability of the Shelf Registration Statement is suspended (a "Deferral
Notice") and, upon receipt of any Deferral Notice, each Notice Holder agrees not
to sell any Registrable Securities pursuant to the 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 best efforts to ensure
that the use of the Prospectus may be resumed (x) in the case of clause (A)
above, as promptly as is practicable, (y) in the case
10
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 reasonably practicable thereafter and (z) in the case of
clause (C) above, as soon as, in the discretion of the Company, such suspension
is no longer appropriate. The period during which the availability of the
Registration Statement and any Prospectus is suspended (the "Deferral Period"),
without the Company incurring any obligation to pay liquidated damages pursuant
to Section 2(e), shall not exceed forty-five (45) days in any three (3) month
period and ninety (90) days in any twelve (12) month period.
(j) If requested, make available for inspection during normal
business hours by a representative for the Notice Holders of such Registrable
Securities and any broker-dealers, attorneys and accountants retained by such
Notice Holders, all relevant financial and other records, pertinent corporate
documents and properties of the Company and its subsidiaries, and cause the
appropriate executive officers, directors and designated employees of the
Company and its subsidiaries to make available for inspection during normal
business hours 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, however, that such persons
shall first agree in writing with the Company that any information that is
reasonably and in good faith designated by the Company in writing as
confidential at the time of delivery of such information shall be kept
confidential by such persons and shall be used solely for the purposes of
exercising rights under this Agreement, unless and to the extent that (i)
disclosure of such information is required by court or administrative order or
is necessary to respond to inquiries of regulatory authorities, (ii) disclosure
of such information is required by law (including any disclosure requirements
pursuant to federal securities laws in connection with the filing of any
Registration Statement or the use of any Prospectus referred to in this
Agreement), (iii) such information becomes generally available to the public
other than as a result of a disclosure or failure to safeguard by any such
person or (iv) such information becomes available to any such person from a
source other than the Company and such source is not bound by a confidentiality
agreement; and provided further, that the foregoing inspection and information
gathering shall, to the greatest extent possible, be coordinated on behalf of
all the Notice Holders and the other parties entitled thereto by the counsel
referred to in Section 5 and provided further, that the Company shall not be
required to disclose any information subject to the attorney-client or attorney-
work product privilege if and to the extent such disclosure would constitute a
waiver of such privilege.
(k) Comply with all applicable rules and regulations of the SEC and
make generally available to its securityholders earning statements (which need
not be audited) satisfying the provisions of Section 11(a) of the Securities Act
and Rule 158 thereunder (or any similar rule promulgated under the Securities
Act) no later than 45 days after the end of any 12-month period (or 90 days
after the end of any 12-month period if such period is a fiscal year) 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.
(l) Cooperate with each Notice Holder to facilitate the timely
preparation and delivery of certificates representing Registrable Securities
sold pursuant to a Registration
11
Statement, and cause such Registrable Securities to be in such denominations as
are permitted by the Indenture and registered in such names as such Notice
Holder may request in writing at least two Business Days 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 for the Securities and the
transfer agent for the with printed certificates for the Registrable Securities
that are in a form eligible for deposit with The Depository Trust Company.
(n) Use its best efforts to provide such information as is required
for 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.
(p) Enter into such customary agreements and take all such other
necessary actions in connection therewith (including those reasonably requested
by the holders of a majority of the Registrable Securities being sold) in order
to expedite or facilitate disposition of such Registrable Securities.
(q) Cause the Indenture to be qualified under the TIA not later than
the effective date of any Registration Statement; and in connection therewith,
cooperate with the Trustee to effect such changes to the Indenture as may be
required for the Indenture to be so qualified in accordance with the terms of
the TIA and execute, and use its 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 the Indenture to be so
qualified in a timely manner.
Section 4. Holder's Obligations. Each Holder agrees, by acquisition of
--------------------
the Registrable Securities, that no Holder of Registrable Securities shall be
entitled to sell any of such Registrable Securities pursuant to a Registration
Statement or to receive a Prospectus relating thereto, unless such Holder has
furnished the Company with a Notice and Questionnaire as required pursuant to
Section 2(d) hereof (including the information required to be included in such
Notice and Questionnaire) and the information set forth in the next sentence.
Each Notice Holder agrees promptly to furnish to the Company all information
required to be disclosed in order to make the information previously furnished
to the Company by such Notice Holder not misleading and any other information
regarding such Notice Holder and the distribution of such Registrable Securities
as may be required to be disclosed in the Registration Statement under
applicable law. 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 provided by such Holder in the Notice and Questionnaire
does not as of the date of such Notice and Questionnaire contain any untrue
statement of a material fact relating to such Holder or its plan of
distribution.
12
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 of the
Registration Statements are 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, fees and disbursements of the counsel specified in the next
sentence in connection with Blue Sky qualifications of the Registrable
Securities under the laws of such jurisdictions as the Notice Holders of a
majority of the Registrable Securities being sold pursuant to a Registration
Statement may designate), (ii) printing expenses (including, without limitation,
expenses of printing certificates for Registrable Securities in a form eligible
for deposit with The Depository Trust Company), (iii) duplication expenses
relating to copies of any Registration Statement or Prospectus delivered to any
Holders hereunder, (iv) fees and disbursements of counsel for the Company in
connection with the Shelf Registration Statement, and (v) fees and disbursements
of the Trustee and its counsel and of the registrar and transfer agent for the
Common Stock. In addition, the Company shall bear or reimburse the Notice
Holders for the fees and disbursements of one firm of legal counsel for the
Holders, which shall initially be Shearman & Sterling, but which may, upon 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. 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 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.
Section 6. Indemnification; Contribution. (a) The Company agrees
-----------------------------
to indemnify and hold harmless the Initial Purchasers and each holder of
Registrable Securities and each person, if any, who controls the Initial
Purchasers or any holder of Registrable Securities within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact included in any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto), or the omission or
alleged omission therefrom of a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount paid
in settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or
13
threatened, or of any claim whatsoever based upon any such untrue statement
or omission, or any such alleged untrue statement or omission, provided
that (subject to Section 6(d) below) any such settlement is effected with
the prior written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel), reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced
or threatened, or any claim whatsoever based upon any such untrue statement
or omission, or any such alleged untrue statement or omission, to the
extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity shall not apply to any loss, liability,
-------- -------
claim, damage or expense to the extent arising out of any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with written information furnished to the Company by the Initial
Purchasers or such holder of Registrable Securities (which also acknowledges the
indemnity provisions herein) and each person, if any, who controls the Initial
Purchasers or any such holder of Registrable Securities expressly for use in the
Registration Statement (or any amendment thereto), or any preliminary prospectus
or the Prospectus (or any amendment or supplement thereto); provided further,
that this indemnity shall not apply to any loss, liability, claim, damage or
expense if the Holder fails to deliver at or prior to the written confirmation
of sale, the most recent Prospectus, as amended or supplemented, and such
Prospectus, as amended or supplemented, having been previously furnished by on
or behalf of the Company to such Holder corrected such untrue statement or
omission or alleged untrue statement or omission of a material fact and the
delivery thereof by such Holder was required by law or any rule or regulation of
any applicable stock exchange.
(b) In connection with any Shelf Registration in which a
holder, including, without limitation, the Initial Purchasers, of Registrable
Securities is participating, in furnishing information relating to such holder
of Registrable Securities to the Company in writing expressly for use in such
Registration Statement, any preliminary prospectus, the Prospectus or any
amendments or supplements thereto, the holders of such Registrable Securities
agree, severally and not jointly, to indemnify and hold harmless the Initial
Purchasers and each person, if any, who controls the Initial Purchasers within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act and the Company, and each person, if any, who controls the Company
within the meaning of either such Section, against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection (a)
of this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto), or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by such holder of
Registrable Securities (which also acknowledges the indemnity provisions herein)
and each person, if any, who controls any such holder of Registrable Securities
expressly for use in the Registration Statement (or any amendment thereto) or
such preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
14
Each of the Initial Purchasers agrees to indemnify and hold harmless
the Company, the holders of Registrable Securities, and each person, if any, who
controls the Company or any holder of Registrable Securities within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act
against any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto), or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Company by the Initial Purchasers expressly for use in the Registration
Statement (or any amendment thereto) or such preliminary prospectus or the
Prospectus (or any amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so 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 and
in any event shall not relieve it from any liability which it may have otherwise
than on account of this indemnity agreement. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
--------
however, that counsel to the indemnifying party shall not (except with the
-------
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 hereof
(whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) 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) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 6(a)(ii) effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of aforesaid request, (ii) such indemnifying
party shall have received notice of the terms of such settlement at least 30
days prior to such settlement being entered into and (iii) such indemnifying
party shall not have reimbursed such indemnified party in accordance with such
request prior to the date of such settlement.
(e) If the indemnification provided for in this Section 6 is for any
reason unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate amount
of such losses, liabilities, claims, damages and expenses
15
incurred by such indemnified party, as incurred, in such proportion as is
appropriate to reflect the relative fault of the indemnifying party or parties
on the one hand and of the indemnified party on the other hand in connection
with the statements or omissions which resulted in such losses, liabilities,
claims, damages or expenses, as well as any other relevant equitable
considerations.
The relative fault of the Company on the one hand and the holders of
the Registrable Securities or the Initial Purchasers on the other hand shall be
determined by reference to, among other things, whether any such untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the Company or by the
holder of the Registrable Securities or the Initial Purchasers and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 6(e) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above in this Section 6(e). The
aggregate amount of losses, liabilities, claims, damages, and expenses incurred
by an indemnified party and referred to above in this Section 6(e) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 6, neither the holder
of any Registrable Securities nor the Initial Purchasers, shall be required to
indemnify or contribute any amount in excess of the amount by which the total
price at which the Registrable Securities sold by such holder of Registrable
Securities or underwritten by the Initial Purchasers, as the case may be, and
distributed to the public were offered to the public exceeds the amount of any
damages that such holder of Registrable Securities or the Initial Purchasers 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.
For purposes of this Section 6(e), each person, if any, who controls
the Initial Purchasers or any holder of Registrable Securities within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act
shall have the same rights to contribution as the Initial Purchasers or such
holder, and each person, if any, who controls the Company within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act shall have
the same rights to contribution as the Company.
Section 7. Information Requirements. (a) 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 of Registrable Securities and take such further reasonable
action as any Holder of Registrable Securities may reasonably
16
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 of Registrable Securities, 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 required to be filed and 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 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.
(b) Amendments and Waivers. The provisions of this Agreement,
----------------------
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company has obtained the written consent of Holders
of a majority of the then outstanding Underlying Common Stock constituting
Registrable Securities (with Holders of Securities deemed to be the Holders, for
purposes of this Section, of the number of outstanding shares of Underlying
Common Stock into which such Securities are or would be convertible or
exchangeable as of the date on which such consent is requested). Notwithstanding
the foregoing, a waiver or consent to depart from the provisions hereof with
respect to a matter that relates exclusively to the rights of Holders of
Registrable Securities whose securities are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect the
rights of other Holders of Registrable Securities may be given by Holders of at
least a majority of the Registrable Securities being sold by such Holders
pursuant to such Registration Statement; 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) upon confirmation, if made by telecopier, (iii) one (1)
17
Business Day after being deposited with such courier, if made by overnight
courier or (iv) on the date indicated on the notice of receipt, if made by
first-class mail, to the parties as follows:
(w) if to a Holder of Registrable Securities, at the most current
address given by such Holder to the Company in a Notice and Questionnaire
or any amendment thereto;
(x) if to the Company, to:
14040 Danielson Street
Poway, California 92064
Attention: General Counsel
and
Latham & Watkins
650 Town Center Drive, 20/th/ Floor
Costa Mesa, CA 92626-1925
Attention: Patrick T. Seaver
Telecopy No.: (714) 755-8290
(y) if to the Initial Purchasers, to:
101 California Street
Suite 1420
San Francisco, California 94111
Attention:
and
10900 Wilshire Boulevard
Suite 900
Los Angeles, California 90024
Attention:
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, the Registrable Securities held by the Company or its Affiliates
(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.
(e) Successors and Assigns. Any person who purchases any
----------------------
Registrable Securities from the Initial Purchasers shall be deemed, for purposes
of this Agreement, to be an assignee of the Initial Purchasers. This Agreement
shall inure to the benefit of and be binding
18
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, WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES THEREOF.
(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 agreements and
undertakings among the parties with respect to such registration rights.
(k) Termination. This Agreement and the obligations of the parties
-----------
hereunder shall terminate upon the expiration of the Effectiveness Period,
except for any liabilities or obligations under Sections 4, 5 or 6 hereof and
the obligations to make payments of and provide for liquidated damages under
Section 2(e) hereof to the extent such damages accrue prior to the end of the
Effectiveness Period, each of which shall remain in effect in accordance with
its terms.
[Remainder of this page intentionally left blank]
19
IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first written above.
RESMED INC.
By: /s/ Peter C. Farrell
------------------------------
Name: Peter C. Farrell
Title: Chairman of the Board, President and
Chief Executive Officer
Confirmed and accepted as of the date
first above written:
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
DEUTSCHE BANC ALEX. BROWN INC.
WILLIAM BLAIR & COMPANY, L.L.C.
MACQUARIE BANK LIMITED
UBS WARBURG LLC
By: MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Merrill Lynch & Co.
----------------------------
Name: Brad W. Coburn
Title: Vice President
20