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EXHIBIT 4.1
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT ("Agreement") is made and entered
into as of June 27, 2000, by and between: CONEXANT SYSTEMS, INC., a Delaware
corporation ("Parent"), and Gordon Campbell and Donald R. Shriner (the
"Shareholders' Agents") on behalf of the shareholders (the "Shareholders") of
HOTRAIL, INC., a California corporation (the "Company"), who are receiving
shares of common stock of Parent pursuant to the Reorganization Agreement
described below.
RECITALS
A. Parent, Steam Acquisition Corp., a Delaware corporation and a wholly
owned subsidiary of Parent ("Merger Sub"), and the Company have entered into an
Agreement and Plan of Merger and Reorganization dated as of June 27, 2000 (the
"Reorganization Agreement"), pursuant to which Merger Sub will merge with and
into the Company (the "Merger") and the Shareholders will have the right to
receive shares of common stock of Parent. Capitalized terms used in this
Agreement and not otherwise defined shall have the meanings given to them in the
Reorganization Agreement.
B. Parent has agreed to provide the Shareholders with certain
registration rights as more fully described herein.
AGREEMENT
The parties, intending to be legally bound, agree as follows:
SECTION 1: REGISTRATION
1.1 REGISTERABLE SHARES. As used in this Agreement, "Registerable
Shares" means (a) the shares of Parent Common Stock issued to the Shareholders
pursuant to Section 1.5 of the Reorganization Agreement, (b) shares of Parent
Common Stock issuable by Parent upon the exercise of any options granted to
entities pursuant to the Company's 2000 Equity Plan that will be assumed by
Parent in accordance with the terms and conditions of the Reorganization
Agreement (the "Option Shares"), to the extent that such Option Shares are not
registerable on a Form S-8 Registration Statement, and (c) any shares of Parent
Common Stock issued in respect thereof as a result of any stock split, stock
dividend, share exchange, merger, consolidation or similar transaction;
provided, however, that Registerable Shares shall cease to be Registerable
Shares when (i) a registration statement covering such Registerable Shares shall
have become effective under the Securities Act of 1933, as amended (the "1933
Act"), and such Registerable Shares shall have been disposed of in accordance
with such registration statement, or (ii) such Registerable Shares may be
transferred pursuant to Rule 144 under the 1933 Act, as such rule may be amended
from time to time, or any successor rule or regulation ("Rule 144") in any
single calendar quarter.
1.2 REGISTRATION.
(a) Within thirty days following the Effective Time, Parent shall
prepare and file with the Securities and Exchange Commission ("SEC") a
registration statement (the
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"Registration Statement") covering the resale of the
Registerable Shares. Parent shall use its best efforts to cause the Registration
Statement to be declared effective as soon as practicable after the Registration
Statement is filed with the SEC. Subject to the terms of this Agreement, Parent
shall use its best efforts to cause the Registration Statement to remain
effective until the earlier of (i) the date on which all Registerable Shares
(other than Option Shares) covered by the Registration Statement have been sold
to the public pursuant to the Registration Statement or (ii) until all
Registerable Shares (other than Option Shares) may be transferred pursuant to
Rule 144 in any single calendar quarter (the "Registration Effective Period").
(b) If Parent shall not have filed the Registration Statement with
the SEC within thirty-seven days following the Effective Time, Parent shall
cause State Street Bank and Trust Company of California, N.A. (the "Escrow
Agent"), to release three percent of the shares of Parent Common Stock held in
any "Escrow Account" pursuant to the Escrow Agreement of even date among Parent,
the Shareholders' Agents and the Escrow Agent to the Shareholders no later than
ten days thereafter (the number of shares to be so released to the Shareholders
being referred to as the "Released Number of Shares"). For each additional
seven-day period following the thirty-seventh day after the Effective Time that
Parent shall not have filed the Registration Statement with the SEC (until
Parent shall have first filed the Registration Statement with the SEC), Parent
shall cause the Escrow Agent to release the Released Number of Shares to the
Shareholders no later than ten days thereafter.
SECTION 2: PARENT'S OBLIGATIONS
In connection with the Registration Statement referred to in Section
1.2, Parent shall:
2.1 REGISTRATION STATEMENT. Prepare and file with the SEC the
Registration Statement and the prospectus relating thereto with respect to the
Registerable Shares and thereafter use its best efforts to cause the
Registration Statement to become and remain effective for the period set forth
in Section 1.2.
2.2 AMENDMENTS AND SUPPLEMENTS. As promptly as practicable prepare and
file with the SEC such amendments and supplements to the Registration Statement
and the prospectus used in connection therewith as may be necessary to keep the
Registration Statement effective for the period set forth in Section 1.2 and to
comply with the provisions of the 1933 Act and the Securities Exchange Act of
1934, as amended (the "1934 Act") with respect to the sale or other disposition
of the shares of Parent Common Stock covered by the Registration Statement.
2.3 COPIES OF OFFERING DOCUMENTS. As promptly as practicable furnish to
the Shareholders such numbers of copies of the Registration Statement,
prospectus and any amendments and supplements thereto, in order to facilitate
the public sale or other disposition of the Registerable Shares.
2.4 MISLEADING PROSPECTUS. Promptly notify each Shareholder, at any
time when a prospectus relating thereto covered by the Registration Statement is
required to be delivered under the 1933 Act, upon the occurrence of an event as
a result of which, in the reasonable judgement of the Board of Directors of
Parent acting in good faith after consultation with outside legal counsel to
Parent, such Registration Statement or the related prospectus contains or may
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contain an untrue statement of a material fact or omits or may omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances under which they were
made. Immediately thereafter Parent shall prepare and file with the SEC and
furnish to each Shareholder as promptly as practicable a reasonable number of
copies of a supplement to or an amendment of such prospectus as may be necessary
so that, as thereafter delivered to the purchasers of such Registerable Shares,
such prospectus shall not include an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances under which
they are made.
2.5 RULE 144. File in a timely manner any reports required to be filed
by it under the 1933 Act and the 1934 Act, and take such further action as the
Shareholders may reasonably request, all from time to time to enable each
Shareholder to sell the Registerable Shares owned by it without registration
under the 1933 Act pursuant to the exemption provided by Rule 144.
2.6 BLUE SKY FILINGS. Use its best efforts to register and qualify the
securities covered by the Registration Statement under the Blue Sky laws of such
jurisdictions as shall be reasonably requested by the Shareholders, provided
that Parent shall not be required in connection therewith or as a condition
thereto to qualify to do business or to file a general consent to service of
process in any such states or jurisdictions.
2.7 NASDAQ FILING. Cause the securities covered by the Registration
Statement to be included for quotation on the Nasdaq National Market.
SECTION 3: THE SHAREHOLDERS' OBLIGATIONS
In connection with the Registration Statement referred to in Section
1.2:
3.1 DOCUMENTS AND INFORMATION. Each Shareholder shall complete,
execute, acknowledge and/or deliver such questionnaires, custody agreements and
other documents, certificates and instruments as are reasonably requested by
Parent or are otherwise necessary in connection with the registration and
offering contemplated by the Registration Statement and promptly provide to
Parent such information concerning such Shareholder, his ownership of Parent's
securities, the intended method of distribution and such other information as
otherwise may be required by applicable law or regulation or as otherwise may be
reasonably requested by Parent.
3.2 CESSATION OF OFFERING. Each Shareholder shall, upon receipt of any
notice from Parent of the happening of any event of the kind described in
Section 2.4, immediately discontinue disposition of the Registerable Shares
pursuant to the Registration Statement covering such Registerable Shares until
the Shareholders' receipt of the copies of the supplemented or amended
prospectus contemplated by Section 2.4, and, if so directed by Parent, deliver
to Parent all copies of the prospectus covering such Registerable Shares in such
Shareholder's possession at the time of receipt of such notice.
3.3 NO PRELIMINARY PROSPECTUS. No Shareholder and no Person acting on
any Shareholder's behalf (other than an underwriter selected by Parent or
approved by Parent) shall offer any Registerable Shares by means of any
preliminary prospectus.
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SECTION 4: LIMITATIONS
Notwithstanding anything to the contrary contained in Section 2.4 or
elsewhere in this Agreement, Parent shall not be obligated to file a
registration statement or any amendment or supplement thereto, and Parent may
suspend the Shareholders' rights to make sales pursuant to an effective
registration pursuant to Section 1, for a period of not more than 45 days if, in
the reasonable judgment of the Board of Directors of Parent acting in good faith
after consultation with outside legal counsel to Parent, the filing of a
registration statement or an amendment or supplement thereto, or the offering or
sale of Parent Common Stock pursuant thereto, or the making of any required
disclosure in connection therewith, would reasonably be expected to (a) cause
Parent to be required to publicly disclose that it is in discussions or
negotiations with respect to a material acquisition, merger, consolidation or
similar transaction that is reasonably likely to occur, or (b) have an adverse
effect upon (i) a pending or scheduled offering of Parent's securities to the
public or (ii) a material acquisition, merger, consolidation, joint venture,
equity investment or other potentially material transaction or event; provided,
however, that Parent shall not utilize the right described in this Section 4.1
(A) more than twice in any 12-month period, or (B) in consecutive 45-day
periods.
SECTION 5: EXPENSES AND INDEMNIFICATION
5.1 CERTAIN FEES AND COMMISSIONS. Parent shall pay its own legal and
accounting fees, "blue sky" expenses and all printing fees in connection with
the Registration Statement. The Shareholders shall pay any fees and costs of
their own counsel and all underwriting discounts, commissions and expenses of
underwriters or brokers incurred in connection with the offering and sale of the
Registerable Shares.
5.2 OTHER EXPENSES. Parent shall pay all registration and filing fees
attributable to the Registerable Shares and the listing fee payable to the
Nasdaq National Market.
5.3 INDEMNIFICATION. In the event any Registerable Shares are included
in a registration statement under Section 1:
(a) INDEMNIFICATION BY PARENT. To the extent permitted by law,
Parent will indemnify and hold harmless each Shareholder, such Shareholder's
heirs, successors and assigns, and each Person, if any, who controls such
Shareholder within the meaning of the 1933 Act or the 1934 Act and their
respective officers, directors, partners, successors and assigns, against any
losses, claims, damages, liabilities or actions to which they may become subject
under the 1933 Act, the 1934 Act or other federal or state law or common law or
otherwise, arising out of or based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, including,
but not limited to, any preliminary prospectus (not prohibited by Section 3.3)
or final prospectus contained therein or any amendments or supplements thereto,
or arising out of or based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein, under the circumstances in which made, not misleading or any
violation by Parent of any rule or regulation under the 1933 Act, the 1934 Act
or other Legal Requirement applicable to Parent and relating to any action or
inaction required of Parent in connection with such registration; and Parent
will reimburse each of the aforementioned indemnified parties for any legal or
other expenses
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reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability, or action; provided, however, that the
indemnification and other rights provided for in this Section 5.3(a) shall not
apply (i) to any such loss, claim, damage, liability, or action insofar as it
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in the Registration Statement, preliminary
prospectus or final prospectus or any amendment or supplement thereto, in
reliance upon and in conformity with written information furnished expressly for
use in connection with such registration by any Shareholder or (ii) provided
that Parent has complied with its obligations under Sections 2.2, 2.3 and 2.4
hereof, if the Person asserting any such loss, claim, damage, liability or
action who purchased the Registerable Shares which are the subject thereof did
not receive a copy of an amended preliminary prospectus or the final prospectus
(or the final prospectus as amended or supplemented) at or prior to the written
confirmation of the sale of such Registerable Shares to such Person because of
the failure of such Shareholder to so provide such amended preliminary or final
prospectus and the untrue statement or alleged untrue statement or omission or
alleged omission of a material fact made in such preliminary prospectus was
corrected in the amended preliminary prospectus or the final prospectus (or the
final prospectus as amended and supplemented). Such indemnity shall remain in
full force and effect regardless of any investigation made by or on behalf of
such Shareholder or controlling person and shall survive the transfer of the
Registerable Shares by such Shareholder.
(b) INDEMNIFICATION BY SHAREHOLDERS. To the extent permitted by
law, each Shareholder will indemnify and hold harmless Parent, its successors
and assigns, its officers and directors and each Person, if any, who controls
Parent within the meaning of the 1933 Act or the 1934 Act, against any losses,
claims, damages, liabilities or actions to which they may become subject under
the 1933 Act, the 1934 Act or other federal or state law or common law or
otherwise, arising out of or based upon (i) any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement,
including, but not limited to, any preliminary prospectus or final prospectus
contained therein or any amendments or supplements thereto, or the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein, under the circumstances in which
made, not misleading; provided that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished by such Shareholder expressly for
use in such registration by such Shareholder, or (ii) provided that Parent has
complied with its obligations under Sections 2.2, 2.3 and 2.4 hereof, the
failure of such Shareholder with respect to the Registerable Shares held by such
Shareholder at or prior to the written confirmation of the sale of the
Registerable Shares held by such Shareholder to send or arrange delivery of a
copy of an amended preliminary prospectus or the final prospectus (or the final
prospectus as amended or supplemented) to the Person asserting any such loss,
claim, damage, liability or action who purchased the Registerable Shares which
is the subject thereof and the untrue statement or alleged untrue statement or
omission or alleged omission of a material fact made in such preliminary
prospectus was corrected in the amended preliminary prospectus or the final
prospectus (or the final prospectus as amended and supplemented). Each
Shareholder will reimburse Parent, its successors and assigns, its officers and
directors and any such controlling person for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability, or action. Such indemnity shall remain in
full force and effect regardless of any investigation made by or on behalf of
Parent or any such officer, director or controlling person and shall survive the
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transfer of the Registerable Shares by such Shareholder. Notwithstanding the
foregoing, in no event shall any Shareholder be liable pursuant to this Section
5.3(b) for an amount in excess of the net proceeds received by such Shareholder
from the sale of Registerable Shares pursuant to the Registration Statement.
(c) INDEMNIFICATION PROCEDURES. Promptly after receipt by a Person
who may be entitled to indemnification under this Section 5.3 (an "indemnified
party") of notice of the commencement of any action (including, but not limited
to, any governmental action) for which indemnification may be available under
this Section 5.3, such indemnified party will, if a claim in respect thereof is
to be made against any Person who must provide indemnification under this
Section 5.3 (an "indemnifying party"), deliver to the indemnifying party a
written notice of the commencement thereof, and the indemnifying party shall
have the right to participate in and, to the extent the indemnifying party so
desires, jointly with any other indemnifying party similarly notified, to assume
the defense thereof with counsel mutually satisfactory to the parties; provided,
however, that an indemnified party shall have the right to retain its own
counsel (and the reasonable fees of such counsel shall be paid by the
indemnifying party) and assume its own defense if (i) the retention of such
counsel has been specifically authorized in writing by the indemnifying party,
(ii) the indemnifying party has failed to promptly assume the defense and employ
counsel reasonably acceptable to the indemnified party after the indemnifying
party has received the notice of the indemnification matter from the indemnified
party, or (iii) the named parties to any such action include, but are not
limited to, both the indemnified party and the indemnifying party, and the
representation of both parties by the same counsel would be inappropriate due to
a material conflict of interest between them. It is understood, however, that
the indemnifying party shall not, in connection with any one such action or
separate but substantially similar or related actions in the same jurisdiction,
be liable for the reasonable fees and expenses of more than one separate firm of
attorneys for all indemnified parties unless the indemnified parties in good
faith conclude and are advised by their counsel that there is an actual or
potential conflict of interest among the indemnified parties. The failure of any
indemnified party to give notice as provided herein shall not release any
indemnifying party of its indemnification obligations provided for in Section
5.3(a) or 5.3(b) except to the extent that the party to whom notice was not
given was unaware of the proceeding to which such notice would have related and
was materially prejudiced by the failure to give such notice. Each indemnified
party shall furnish such information regarding itself or the claim in question
as an indemnifying party may reasonably request in writing and as shall be
reasonably required in connection with the defense of such claim and litigation
resulting therefrom.
(d) To the extent that the indemnification provided for in Section
5.3(a) and (b) is held by a court of competent jurisdiction to be unavailable to
an indemnified party with respect to any loss, liability, claim, damage or
expense referred to herein, then the indemnifying party, in lieu of indemnifying
such indemnified party hereunder, shall contribute to the amount paid or payable
by such indemnified party as a result of such loss, liability, claim, damage or
expense in such proportion as is appropriate to reflect the relative fault of
the indemnifying party on the one hand and of the indemnified party on the other
in connection with the statements or omissions which resulted in such loss,
liability, claim, damage or expense, as well as any other relevant equitable
considerations. The relative fault of the indemnifying party on the one hand and
of the indemnified party shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or
omission or alleged omission to state
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a material fact related to information supplied by the indemnifying party or by
the indemnified party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission;
provided, however, that in any such case (i) no Shareholder will be required to
contribute any amount in excess of the net proceeds received by such Shareholder
from the sale of Registerable Shares pursuant to the Registration Statement and
(ii) no Person guilty of fraudulent misrepresentation within the meaning of
Section 11(f) of the 1933 Act will be entitled to contribution from any Person
not guilty of such fraudulent misrepresentation.
SECTION 6: OTHER PROVISIONS
6.1 ATTORNEYS' FEES. If any Legal Proceeding relating to this Agreement
or the enforcement of any provision of this Agreement is brought against any
party hereto, the prevailing party shall be entitled to recover reasonable
attorneys' fees, costs and disbursements (in addition to any other relief to
which the prevailing party may be entitled).
6.2 NOTICES. Any notice or other communication required or permitted to
be delivered to any party under this Agreement shall be in writing and shall be
deemed properly delivered, given and received (a) when delivered by hand, or (b)
two business days after sent by certified or registered mail, return receipt
requested, or by courier or express delivery service to the address set forth in
Section 10.5 of the Reorganization Agreement (or to such other address or
facsimile telephone number as such party shall have specified in a written
notice given to the other parties hereto).
6.3 HEADINGS. The bold-faced headings contained in this Agreement are
for convenience of reference only, shall not be deemed to be a part of this
Agreement and shall not be referred to in connection with the construction or
interpretation of this Agreement.
6.4 COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall constitute an original and all of which, when
taken together, shall constitute one agreement.
6.5 GOVERNING LAW. This Agreement shall be construed in accordance
with, and governed in all respects by, the internal laws of the State of
Delaware (without giving effect to principles of conflicts of laws).
6.6 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon each
of the parties hereto and each of their respective permitted successors and
assigns, if any. No Shareholder may assign such Shareholder's rights under this
Agreement without the express prior written consent of Parent, provided,
however, that (i) upon the death of a Shareholder, such Shareholder's rights
under this Agreement shall be transferred to the Person(s) who receive such
Shareholder's Parent Common Stock under the laws of descent and distribution,
and (ii) a pro rata distribution of Registerable Shares without additional
consideration to the general and limited partners, shareholders or trust
beneficiaries of a Shareholder shall not be deemed a sale or transfer for
purposes of this Section 6.6 and such Persons shall be entitled to the same
rights under this Agreement as the initial Shareholder from which the
Registerable Shares were received were entitled to and shall be deemed a
Shareholder for the purposes of this Agreement.
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Nothing in this Agreement is intended to confer, or shall be deemed to confer,
any rights or remedies upon any Person other than the parties hereto and their
permitted successors and assigns. This Agreement shall inure to the benefit of:
the Shareholders; Parent; and the respective successors and assigns, if any, of
the foregoing.
6.7 SHAREHOLDERS' AGENTS. Each of the Shareholders' Agents shall have
the authority to act on behalf of the Shareholders in his individual capacity,
provided the Shareholders' Agents have consulted with each other.
6.8 WAIVER. No failure on the part of any Person to exercise any power,
right, privilege or remedy under this Agreement, and no delay on the part of any
Person in exercising any power, right, privilege or remedy under this Agreement,
shall operate as a waiver of such power, right, privilege or remedy; and no
single or partial exercise of any such power, right, privilege or remedy shall
preclude any other or further exercise thereof or of any other power, right,
privilege or remedy. No Person shall be deemed to have waived any claim arising
out of this Agreement, or any power, right, privilege or remedy under this
Agreement, unless the waiver of such claim, power, right, privilege or remedy is
expressly set forth in a written instrument duly executed and delivered on
behalf of such Person; and any such waiver shall not be applicable or have any
effect except in the specific instance in which it is given.
6.9 AMENDMENTS. This Agreement may not be amended, modified, altered or
supplemented other than by means of a written instrument duly executed and
delivered on behalf of all of the parties hereto.
6.10 SEVERABILITY. In the event that any provision of this Agreement,
or the application of any such provision to any Person or set of circumstances,
shall be determined to be invalid, unlawful, void or unenforceable to any
extent, the remainder of this Agreement, and the application of such provision
to Persons or circumstances other than those as to which it is determined to be
invalid, unlawful, void or unenforceable, shall not be impaired or otherwise
affected and shall continue to be valid and enforceable to the fullest extent
permitted by law.
6.11 PARTIES IN INTEREST. Except for the provisions of Section 5.3,
none of the provisions of this Agreement is intended to provide any rights or
remedies to any Person other than the parties hereto; the Shareholders and the
respective successors and assigns, if any, of the foregoing.
6.12 ENTIRE AGREEMENT. This Agreement and the other agreements referred
to herein set forth the entire understanding of the parties hereto relating to
the subject matter hereof and thereof and supersede all prior agreements and
understandings among or between any of the parties relating to the subject
matter hereof and thereof.
6.13 WAIVER OF JURY TRIAL. Each of the parties hereto hereby
irrevocably waives any and all right to trial by jury in any Legal Proceeding
arising out of or related to this Agreement or the transactions contemplated
hereby.
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6.14 CONSTRUCTION.
(a) For purposes of this Agreement, whenever the context requires:
the singular number shall include the plural, and vice versa; the masculine
gender shall include the feminine and neuter genders; the feminine gender shall
include the masculine and neuter genders; and the neuter gender shall include
the masculine and feminine genders.
(b) The parties hereto agree that any rule of construction to the
effect that ambiguities are to be resolved against the drafting party shall not
be applied in the construction or interpretation of this Agreement.
6.15 PARTIES TO THIS AGREEMENT. Approval of the Reorganization
Agreement by the Shareholders shall be deemed to be approval of this Agreement
by each of the Shareholders. By virtue of such approval, the Shareholders have
agreed that such approval shall cause this Agreement to be the valid and binding
obligation of such shareholder. Moreover, by entering into certain Shareholder
Representation Letters in favor of Parent and Merger Sub, the Shareholders have
affirmed their agreement to be bound by the terms and conditions of this
Agreement as though they were parties hereto.
[Signature Page Follows]
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This Registration Rights Agreement has been executed and delivered as
of the date first stated above.
CONEXANT SYSTEMS, INC.
By: /s/ Balakrishnan S. Iyer
-----------------------------------
Its: Senior Vice President and Chief
Financial Officer
Print Name: Balakrishnan S. Iyer
SHAREHOLDER'S AGENTS:
/s/ Gordon Campbell
----------------------------------------
Gordon Campbell
/s/ Donald R. Shriner
----------------------------------------
Donald R. Shriner
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