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EXHIBIT 4.3
RESALE REGISTRATION RIGHTS AGREEMENT
among
RADISYS CORPORATION
and
SG COWEN SECURITIES CORPORATION
BANC OF AMERICA SECURITIES LLC
J.P. MORGAN & CO.
FIRST SECURITY VAN KASPER
DATED AS OF AUGUST 9, 2000
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RESALE REGISTRATION RIGHTS AGREEMENT, dated as of August 9,
2000, between RadiSys Corporation, an Oregon corporation (together with any
successor entity, herein referred to as the "Issuer"), and SG Cowen Securities
Corporation, Banc of America Securities LLC, J.P. Morgan & Co. and First
Securities Van Kasper (collectively, the "Initial Purchasers").
Pursuant to the Purchase Agreement, dated August 3, 2000,
between the Issuer and the Initial Purchasers (the "Purchase Agreement"), the
Initial Purchasers have agreed to purchase from the Issuer up to $100,000,000
($120,000,000 if the Initial Purchasers exercise the over-allotment option in
full) in aggregate principal amount of 5-1/2% Convertible Subordinated Notes due
2007 (the "Notes"). The Notes will be convertible into fully paid, nonassessable
common stock of the Issuer (the "Common Stock") on the terms, and subject to the
conditions, set forth in the Indenture (as defined herein). To induce the
Initial Purchasers to purchase the Notes, the Issuer has agreed to provide the
registration rights set forth in this Agreement pursuant to Section 6(o) of the
Purchase Agreement.
The parties hereby agree as follows:
1. DEFINITIONS. As used in this Agreement, the following
capitalized terms shall have the following meanings:
ADVICE: As defined in Section 4(c)(ii) hereof.
AGREEMENT: This Resale Registration Rights Agreement.
BLUE SKY APPLICATION: As defined in Section 6(a) hereof.
BROKER-DEALER: Any broker or dealer registered under the
Exchange Act.
BUSINESS DAY: A day other than a Saturday or Sunday or any
federal holiday in the United States.
CLOSING DATE: The date of this Agreement.
COMMISSION: Securities and Exchange Commission.
COMMON STOCK: As defined in the preamble hereto.
DAMAGES PAYMENT DATE: Each Interest Payment Date. For purposes
of this Agreement, if no Notes are outstanding, "Damages Payment Date" shall
mean each February 15 and August 15.
EFFECTIVENESS PERIOD: As defined in Section 2(a)(iii) hereof.
EFFECTIVENESS TARGET DATE: As defined in Section 2(a)(ii)
hereof.
EXCHANGE ACT: Securities Exchange Act of 1934, as amended.
HOLDER: A Person who owns, beneficially or otherwise, Transfer
Restricted Securities.
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INDEMNIFIED HOLDER: As defined in Section 6(a) hereof.
INDENTURE: The Indenture, dated as of August 9, 2000, between
the Issuer and U.S. Trust Company, National Association, as trustee (the
"Trustee"), pursuant to which the Notes are to be issued, as such Indenture is
amended, modified or supplemented from time to time in accordance with the terms
thereof.
INITIAL PURCHASERS: As defined in the preamble hereto.
INTEREST PAYMENT Date: As defined in the Indenture.
ISSUER: As defined in the preamble hereto.
LIQUIDATED DAMAGES: As defined in Section 3(a) hereof.
MAJORITY OF HOLDERS: Holders holding over 50% of the aggregate
principal amount of Notes outstanding; PROVIDED that, for purpose of this
definition, a holder of shares of Common Stock which constitute Transfer
Restricted Securities and issued upon conversion of the Notes shall be deemed to
hold an aggregate principal amount of Notes (in addition to the principal amount
of Notes held by such holder) equal to the product of (x) the number of such
shares of Common Stock held by such holder and (y) the prevailing conversion
price, such prevailing conversion price as determined in accordance with Section
12 of the Indenture.
NASD: National Association of Securities Dealers, Inc.
NOTES: As defined in the preamble hereto.
PERSON: An individual, partnership, corporation, unincorporated
organization, trust, joint venture or a government or agency or political
subdivision thereof.
PROSPECTUS: The prospectus included in a Shelf Registration
Statement, as amended or supplemented by any prospectus supplement and by all
other amendments thereto, including post-effective amendments, and all material
incorporated by reference into such Prospectus.
QUESTIONNAIRE DEADLINE: As defined in Section 2(b) hereof.
RECORD HOLDER: With respect to any Damages Payment Date, each
Person who is a Holder on the record date with respect to the Interest Payment
Date on which such Damages Payment Date shall occur. In the case of a Holder of
shares of Common Stock issued upon conversion of the Notes, "Record Holder"
shall mean each Person who is a Holder of shares of Common Stock which
constitute Transfer Restricted Securities on the February 1 or August 1
immediately preceding the Damages Payment Date.
REGISTRATION DEFAULT: As defined in Section 3(a) hereof.
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SECURITIES ACT: Securities Act of 1933, as amended.
SHELF FILING DEADLINE: As defined in Section 2(a)(i) hereof.
SHELF REGISTRATION STATEMENT: As defined in Section 2(a)(i)
hereof.
SUSPENSION PERIOD: As defined in Section 4(b)(i) hereof.
TIA: Trust Indenture Act of 1939, as in effect on the date the
Indenture is qualified under the TIA.
TRANSFER RESTRICTED SECURITIES: Each Note and each share of
Common Stock issued upon conversion of Notes until the earlier of:
(i) the date on which such Note or such share of Common Stock
issued upon conversion has been effectively registered under the Securities
Act and disposed of in accordance with the Shelf Registration Statement;
(ii) the date on which such Note or such share of Common
Stock issued upon conversion is transferred in compliance with Rule 144
under the Securities Act or may be sold or transferred pursuant to Rule 144
under the Securities Act (or any other similar provision then in force); or
(iii) the date on which such Note or such share of Common
Stock issued upon conversion ceases to be outstanding (whether as a result
of redemption, repurchase and cancellation, conversion or otherwise).
UNDERWRITTEN REGISTRATION OR UNDERWRITTEN OFFERING: A
registration in which securities of the Issuer are sold to an underwriter for
reoffering to the public.
2. SHELF REGISTRATION.
(a) The Issuer shall:
(i) not later than 90 days after the date hereof (the "Shelf
Filing Deadline"), cause to be filed a registration statement pursuant to
Rule 415 under the Securities Act (the "Shelf Registration Statement"),
which Shelf Registration Statement shall provide for resales of all
Transfer Restricted Securities held by Holders that have provided the
information required pursuant to the terms of Section 2(b) hereof;
(ii) use its reasonable efforts to cause the Shelf
Registration Statement to be declared effective by the Commission as
promptly as practicable, but in no event later than 180 days after the date
hereof (the "Effectiveness Target Date");
(iii) use its reasonable efforts to keep the Shelf
Registration Statement continuously effective, supplemented and amended as
required by the provisions of
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Section 4(b) hereof to the extent necessary to ensure that (A) it is
available for resales by the Holders of Transfer Restricted Securities
entitled to the benefit of this Agreement and (B) conforms with the
requirements of this Agreement and the Securities Act and the rules and
regulations of the Commission promulgated thereunder as announced from time
to time for a period (the "Effectiveness Period") which is the earlier of:
(1) two years following the last date of original
issuance of the Notes; and
(2) such shorter period that will terminate when (x) all
of the Holders (other than Holders who are "affiliates" of
the Issuer for purposes of Rule 144(k) under the Securities
Act) of Transfer Restricted Securities are able to sell all
Transfer Restricted Securities immediately without
restriction pursuant to Rule 144(k) under the Securities Act
or any successor rule thereto, (y) when all Transfer
Restricted Securities have ceased to be outstanding (whether
as a result of redemption, repurchase and cancellation,
conversion or otherwise) or (z) all Transfer Restricted
Securities are registered under the Shelf Registration
Statement and disposed of in accordance with the Shelf
Registration Statement; and
(iv) upon receipt of a completed questionnaire after the time
of effectiveness, as promptly as practicable but in any event within five
Business Days of receipt of such questionnaire, file any amendments or
supplements to the Shelf Registration Statement necessary for Holders
identified in such questionnaire to be named as selling shareholders in the
Prospectus contained therein, PROVIDED that nothing in this subsection (iv)
shall supercede the Issuer's rights pursuant to Section 4(b)(i)(x).
(b) No Holder of Transfer Restricted Securities may include any
of its Transfer Restricted Securities in the Shelf Registration Statement
pursuant to this Agreement unless such Holder furnishes to the Issuer in
writing, such information as the Issuer may reasonably request for use in
connection with the Shelf Registration Statement or Prospectus or preliminary
Prospectus included therein and in any application to be filed with or under
state securities laws (the form of a questionnaire is attached hereto as Exhibit
A.). Prior to the effectiveness of the Shelf Registration Statement, each Holder
of Transfer Restricted Securities may furnish such information to the Issuer in
writing no later than the 20th Business Day after receipt of a request from the
Issuer therefor and the Issuer will include such information in the Shelf
Registration Statement in a manner so that upon effectiveness, such Holders will
be permitted to deliver the Prospectus to purchasers of such Holder's Notes and
Common Stock. From and after the date the Shelf Registration Statement is first
declared effective, upon receipt of a completed questionnaire (in the form
attached hereto as Exhibit A), the Issuer will, as promptly as practicable but
in any event within five Business Days of receipt as provided in Section
2(a)(iv) above, file any amendments or supplements to the Shelf Registration
Statement necessary for Holders to be named as selling shareholders in the
Prospectus contained therein to be permitted to deliver the Prospectus to
purchasers of such Holder's Notes and Common Stock (subject to the Issuer's
right to suspend the Shelf Registration Statement as described in Section
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4(b)(i)(x) below). In connection with all such requests for information from
Holders of Transfer Restricted Securities, the Issuer shall notify such Holders
of the requirements set forth in the preceding sentence. HOLDERS THAT DO NOT
COMPLETE AND DELIVER THE QUESTIONNAIRE IN A TIMELY MANNER WILL NOT BE NAMED AS
SELLING SHAREHOLDERS IN THE PROSPECTUS. Each Holder as to which the Shelf
Registration Statement is being effected agrees to furnish promptly to the
Issuer all information required to be disclosed in order to make information
previously furnished to the Issuer by such Holder not materially misleading.
3. LIQUIDATED DAMAGES.
(a) If:
(i) the Shelf Registration Statement is not filed with the
Commission prior to or on the Shelf Filing Deadline;
(ii) the Shelf Registration Statement has not been declared
effective by the Commission prior to or on the Effectiveness Target Date;
(iii) subject to the provisions of Section 4(b)(i) hereof,
the Shelf Registration Statement is filed and declared effective but,
during the Effectiveness Period, shall thereafter cease to be effective or
fail to be usable for its intended purpose without being succeeded within
five Business Days by a post-effective amendment to the Shelf Registration
Statement or a report filed with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act that cures such failure and, in the
case of a post-effective amendment, is itself immediately declared
effective; or
(iv) (x) on or after the 61st day of any Suspension Period,
such suspension has not been terminated or (y) Suspension Periods exceed an
aggregate of 90 days in any 360-day period,
(each such event referred to in foregoing clauses (i) through (iv), a
"Registration Default"), the Issuer hereby agrees to pay liquidated damages
("Liquidated Damages") with respect to the Transfer Restricted Securities from
and including the day following the Registration Default to but excluding the
day on which the Registration Default has been cured:
(A) in respect of the Notes, to each holder of Notes,
(x) with respect to the first 90-day period during which a
Registration Default shall have occurred and be continuing, in an
amount per year equal to an additional 0.50% of the principal amount
of the then-outstanding and not converted Notes, (y) with respect to
the period from the 91st day following the day the Registration
Default shall have occurred and be continuing until the earlier of (i)
the 180th day following the day the Registration Default shall have
occurred and (ii) the day on which the Registration Default has been
cured, in an amount per year equal to an additional 0.25% of the
principal amount of the then-outstanding and not converted Notes and
(z) with respect to the period from the 181st day following the day
the Registration Default shall have occurred until the day on which
the Registration Default has been cured, in an amount
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per annum equal to an additional 0.25% of the principal amount of the
then-outstanding and not converted Notes; PROVIDED that in no event
shall Liquidated Damages accrue at a rate per year exceeding 1.00% of
the principal amount of the then-outstanding and not converted Notes;
and
(B) in respect of any shares of Common Stock, to each
holder of shares of Common Stock issued upon conversion of Notes, (x)
with respect to the first 90-day period in which a Registration
Default shall have occurred and be continuing, in an amount per year
equal to 0.50% of the principal amount of the converted Notes, and (y)
with respect to the period from the 91st day following the day the
Registration Default shall have occurred and be continuing until the
earlier of (i) the 180th day following the day the Registration
Default shall have occurred and (ii) the day on which the Registration
Default has been cured, in an amount per year equal to 0.25% of the
principal amount of the converted Notes and (z) with respect to the
period from the 181st day following the day the Registration Default
shall have occurred until the day on which the Registration Default
has been cured, in an amount per annum equal to an additional 0.25% of
the principal amount of the converted Notes; PROVIDED that in no event
shall Liquidated Damages accrue at a rate per year exceeding 1.00% of
the sum of the principal amount of the converted Notes.
(b) All accrued Liquidated Damages shall be paid in arrears to
Record Holders by the Issuer on each Damages Payment Date by wire transfer of
immediately available funds or by federal funds check. Following the cure of all
Registration Defaults relating to any particular Note or share of Common Stock,
the accrual of Liquidated Damages with respect to such Note or share of Common
Stock will cease.
All obligations of the Issuer set forth in this Section 3 that
are outstanding with respect to any Transfer Restricted Security at the time
such security ceases to be a Transfer Restricted Security shall survive until
such time as all such obligations with respect to such Transfer Restricted
Security shall have been satisfied in full.
The Liquidated Damages set forth above shall be the exclusive
monetary remedy available to the Holders of Transfer Restricted Securities for
such Registration Default.
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4. REGISTRATION PROCEDURES.
(a) In connection with the Shelf Registration Statement, the
Issuer shall comply with all the provisions of Section 4(b) hereof and shall use
its reasonable efforts to effect such registration to permit the sale of the
Transfer Restricted Securities being sold in accordance with the intended method
or methods of distribution thereof, and pursuant thereto, shall as promptly as
practicable prepare and file with the Commission a Shelf Registration Statement
relating to the registration on any appropriate form under the Securities Act.
(b) In connection with the Shelf Registration Statement and any
Prospectus required by this Agreement to permit the sale or resale of Transfer
Restricted Securities, the Issuer shall:
(i) Subject to any notice by the Issuer in accordance with
this Section 4(b) of the existence of any fact or event of the kind
described in Section 4(b)(iii)(D), use its reasonable efforts to keep the
Shelf Registration Statement continuously effective during the
Effectiveness Period; upon the occurrence of any event that would cause any
the Shelf Registration Statement or the Prospectus contained therein (A) to
contain a material misstatement or omission or (B) not be effective and
usable for resale of Transfer Restricted Securities during the
Effectiveness Period, the Issuer shall file promptly an appropriate
amendment to the Shelf Registration Statement or a report filed with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act, in the case of clause (A), correcting any such misstatement or
omission, and, in the case of either clause (A) or (B), use its reasonable
efforts to cause such amendment to be declared effective and the Shelf
Registration Statement and the related Prospectus to become usable for
their intended purposes as soon as practicable thereafter. Notwithstanding
the foregoing, the Issuer may suspend the effectiveness of the Shelf
Registration Statement by written notice to the Holders for a period not to
exceed an aggregate of 60 days in any 90-day period (each such period, a
"Suspension Period") if:
(x) an event occurs and is continuing as a result of
which the Shelf Registration Statement or the Prospectus
which is a part thereof would, in the Issuer's judgment,
contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and
(y) the Issuer reasonably determines that the
disclosure of such event at such time would have a material
adverse effect on the business of the Issuer and its
subsidiaries, if any, taken as a whole;
PROVIDED that Suspension Periods shall not exceed an aggregate of 90 days
in any 360-day period.
(ii) Prepare and file with the Commission such amendments and
post-effective amendments to the Shelf Registration Statement as may be
necessary to keep the Shelf Registration Statement effective during the
Effectiveness Period; cause the Prospectus to
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be supplemented by any required Prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 under the Securities Act, and
to comply fully with the applicable provisions of Rules 424 and 430A under
the Securities Act in a timely manner; and comply with the provisions of
the Securities Act with respect to the disposition of all securities
covered by the Shelf Registration Statement during the applicable period in
accordance with the intended method or methods of distribution by the
sellers thereof set forth in the Shelf Registration Statement or supplement
to the Prospectus.
(iii) Advise the underwriter(s), if any, and selling Holders
promptly (but in any event within five Business Days) and, if requested by
such Persons, to confirm such advice in writing:
(A) when the Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to the
Shelf Registration Statement or any post-effective amendment thereto,
when the same has become effective,
(B) of any request by the Commission for amendments to
the Shelf Registration Statement or amendments or supplements to the
Prospectus or for additional information relating thereto,
(C) of the issuance by the Commission of any stop order
suspending the effectiveness of the Shelf Registration Statement under
the Securities Act or of the suspension by any state securities
commission of the qualification of the Transfer Restricted Securities
for offering or sale in any jurisdiction, or the initiation of any
proceeding for any of the preceding purposes, or
(D) of the existence of any fact or the happening of any
event, during the Effectiveness Period, that makes any statement of a
material fact made in the Shelf Registration Statement, the
Prospectus, any amendment or supplement thereto, or any document
incorporated by reference therein untrue, or that requires the making
of any additions to or changes in the Shelf Registration Statement or
the Prospectus in order to make the statements therein not misleading.
If at any time the Commission shall issue any stop order suspending the
effectiveness of the Shelf Registration Statement, or any state securities
commission or other regulatory authority shall issue an order suspending
the qualification or exemption from qualification of the Transfer
Restricted Securities under state securities or Blue Sky laws, the Issuer
shall use its reasonable efforts to obtain the withdrawal or lifting of
such order at the earliest possible time and will provide to the Initial
Purchasers and each Holder who is named in the Shelf Registration Statement
prompt notice of the withdrawal of any such order.
(iv) Furnish to each of the selling Holders and each of the
underwriter(s), if any, before filing with the Commission, a copy of the
Shelf Registration Statement and copies of any Prospectus included therein
or any amendments or supplements to any the
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Shelf Registration Statement or Prospectus (other than documents
incorporated by reference after the initial filing of the Shelf
Registration Statement), which documents will be subject to the review of
such holders and underwriter(s), if any, for a period of at least ten
Business Days, and the Issuer will not file the Shelf Registration
Statement or Prospectus or any amendment or supplement to the Shelf
Registration Statement or Prospectus (other than documents incorporated by
reference) to which a selling Holder of Transfer Restricted Securities
covered by the Shelf Registration Statement or the underwriter(s), if any,
shall reasonably object within five Business Days after the receipt
thereof.
(v) Make available at reasonable times for inspection by one
or more representatives of the selling Holders, designated in writing by a
Majority of Holders whose Transfer Restricted Securities are included in
the Shelf Registration Statement, any underwriter participating in any
distribution pursuant to the Shelf Registration Statement, and any attorney
or accountant retained by such selling Holders or any of the
underwriter(s), all financial and other records, pertinent corporate
documents and properties of the Issuer as shall be reasonably necessary to
enable them to exercise any applicable due diligence responsibilities, and
cause the Issuer's officers, directors, managers and employees to supply
all information reasonably requested by any such representative or
representatives of the selling Holders, underwriter, attorney or accountant
in connection with the Shelf Registration Statement after the filing
thereof and before its effectiveness; PROVIDED, HOWEVER, that any
information designated by the Company as confidential at the time of
delivery of such information shall be kept confidential by the recipient
thereof.
(vi) If requested by any selling Holders or the
underwriter(s), if any, promptly incorporate in the Shelf Registration
Statement or Prospectus, pursuant to a supplement or post-effective
amendment if necessary, such information as such selling Holders and
underwriter(s), if any, may reasonably request to have included therein,
including, without limitation: (1) information relating to the "Plan of
Distribution" of the Transfer Restricted Securities, (2) information with
respect to the principal amount of Notes or number of shares of Common
Stock being sold to such underwriter(s), (3) the purchase price being paid
therefor and (4) any other terms of the offering of the Transfer Restricted
Securities to be sold in such offering; and make all required filings of
such Prospectus supplement or post-effective amendment as soon as
reasonably practicable after the Issuer is notified of the matters to be
incorporated in such Prospectus supplement or post-effective amendment.
(vii) Furnish to each selling Holder and each of the
underwriter(s), if any, without charge, at least one copy of the Shelf
Registration Statement, as first filed with the Commission, and of each
amendment thereto (and any documents incorporated by reference therein or
exhibits thereto (or exhibits incorporated in such exhibits by reference)
as such Person may request).
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(viii) Deliver to each selling Holder and each of the
underwriter(s), if any, without charge, as many copies of the Prospectus
(including each preliminary prospectus) and any amendment or supplement
thereto as such Persons reasonably may request; subject to any notice by
the Issuer in accordance with this Section 4(b) of the existence of any
fact or event of the kind described in Section 4(b)(iii)(D), the Issuer
hereby consents to the use of the Prospectus and any amendment or
supplement thereto by each of the selling Holders and each of the
underwriter(s), if any, in connection with the offering and the sale of the
Transfer Restricted Securities covered by the Prospectus or any amendment
or supplement thereto.
(ix) If an underwriting agreement is entered into and the
registration is an Underwritten Registration, the Issuer shall:
(A) upon request, furnish to each selling Holder and
each underwriter, if any, in such substance and scope as they may
reasonably request and as are customarily made by issuers to
underwriters in primary underwritten offerings, upon the date of
closing of any sale of Transfer Restricted Securities in an
Underwritten Registration:
(1) a certificate, dated the date of such closing,
signed by the Chief Financial Officer of the Issuer confirming, as
of the date thereof, the matters set forth in Section 6(i) of the
Purchase Agreement and such other matters as such parties may
reasonably request;
(2) opinions, each dated the date of such closing, of
counsel to the Issuer covering such of the matters set forth in
Section 6(c) of the Purchase Agreement as are customarily covered in
legal opinions to underwriters in connection with primary
underwritten offerings of securities; and
(3) customary comfort letters, dated the date of such
closing, from the Issuer's independent accountants (and from any
other accountants whose report is contained or incorporated by
reference in the Shelf Registration Statement), in the customary
form and covering matters of the type customarily covered in comfort
letters to underwriters in connection with primary underwritten
offerings of securities;
(B) set forth in full in the underwriting agreement
indemnification provisions and procedures which provide rights no less
protective than those set forth in Section 6 hereof with respect to
all parties to be indemnified; and
(C) deliver such other documents and certificates as may
be reasonably requested by such parties to evidence compliance with
clause (A) above and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the selling
Holders pursuant to this clause (ix).
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(x) Before any public offering of Transfer Restricted
Securities, cooperate with the selling Holders, the underwriter(s), if any,
and their respective counsel in connection with the registration and
qualification of the Transfer Restricted Securities under the securities or
Blue Sky laws of such jurisdictions as the selling Holders or
underwriter(s), if any, may reasonably request and do any and all other
acts or things necessary or advisable to enable the disposition in such
jurisdictions of the Transfer Restricted Securities covered by the Shelf
Registration Statement; PROVIDED, HOWEVER, that the Issuer shall not be
required (A) to register or qualify as a foreign corporation or a dealer of
securities where it is not now so qualified or to take any action that
would subject it to the service of process in any jurisdiction where it is
not now so subject or (B) to subject itself to taxation in any such
jurisdiction if it is not now so subject.
(xi) Cooperate with the selling Holders and the underwriter(s),
if any, to facilitate the timely preparation and delivery of certificates
representing Transfer Restricted Securities to be sold and not bearing any
restrictive legends (unless required by applicable securities laws); and
enable such Transfer Restricted Securities to be in such denominations and
registered in such names as the Holders or the underwriter(s), if any, may
request at least two Business Days before any sale of Transfer Restricted
Securities made by such underwriter(s).
(xii) Use its reasonable efforts to cause the Transfer
Restricted Securities covered by the Shelf Registration Statement to be
registered with or approved by such other U.S. governmental agencies or
authorities as may be necessary to enable the seller or sellers thereof or
the underwriter(s), if any, to consummate the disposition of such Transfer
Restricted Securities.
(xiii) Subject to Section 4(b)(i) hereof, if any fact or event
contemplated by Section 4(b)(iii)(D) hereof shall exist or have occurred,
use its reasonable efforts to prepare a supplement or post-effective
amendment to the Shelf Registration Statement or related Prospectus or any
document incorporated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of Transfer
Restricted Securities, the Prospectus will not contain an 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.
(xiv) Provide CUSIP numbers for all Transfer Restricted
Securities not later than the effective date of the Shelf Registration
Statement and provide the Trustee under the Indenture with certificates for
the Notes that are in a form eligible for deposit with The Depository Trust
Company.
(xv) Cooperate and assist in any filings required to be made
with the NASD and in the performance of any due diligence investigation by
any underwriter that is required to be retained in accordance with the
rules and regulations of the NASD.
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(xvi) Otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission and all reporting
requirements under the rules and regulations of the Exchange Act.
(xvii) Cause the Indenture to be qualified under the TIA not
later than the effective date of the Shelf Registration Statement required
by this Agreement, and, in connection therewith, cooperate with the trustee
and the holders of Notes to effect such changes to the Indenture as may be
required for such Indenture to be so qualified in accordance with the terms
of the TIA; and execute and use its reasonable efforts to cause the trustee
thereunder to execute all documents that may be required to effect such
changes and all other forms and documents required to be filed with the
Commission to enable such Indenture to be so qualified in a timely manner.
(xviii) Cause all Transfer Restricted Securities covered by the
Shelf Registration Statement to be listed or quoted, as the case may be, on
each securities exchange or automated quotation system on which similar
securities issued by the Issuer are then listed or quoted.
(xix) Provide promptly to each Holder upon written request each
document filed with the Commission pursuant to the requirements of Section
13 and Section 15 of the Exchange Act after the effective date of the Shelf
Registration Statement.
(xx) If requested by the underwriters in an Underwritten
Offering, make appropriate officers of the Issuer available to the
underwriters for meetings with prospective purchasers of the Transfer
Restricted Securities and prepare and present to potential investors
customary "road show" material in a manner consistent with other new
issuances of other securities similar to the Transfer Restricted
Securities.
(c) Each Holder agrees by acquisition of a Transfer Restricted
Security that, upon receipt of any notice from the Issuer of the existence of
any fact of the kind described in Section 4(b)(iii)(C) or (D) hereof, such
Holder will, and will use its reasonable efforts to cause any underwriter(s) in
an Underwritten Offering to, forthwith discontinue disposition of Transfer
Restricted Securities pursuant to the Shelf Registration Statement until:
(i) such Holder has received copies of the supplemented or
amended Prospectus contemplated by Section 4(b)(xiii) hereof; or
(ii) such Holder is advised in writing (the "Advice") by the
Issuer that the use of the Prospectus may be resumed, and has received
copies of any additional or supplemental filings that are incorporated by
reference in the Prospectus.
If so directed by the Issuer, each Holder will deliver to the Issuer (at the
Issuer's expense) all copies, other than permanent file copies then in such
Holder's possession, of the Prospectus covering such Transfer Restricted
Securities that was current at the time of receipt of such notice of suspension.
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5. REGISTRATION EXPENSES.
(a) All expenses incident to the Issuer's performance of or
compliance with this Agreement shall be borne by the Issuer regardless of
whether a Shelf Registration Statement becomes effective, including, without
limitation:
(i) all registration and filing fees and expenses (including
filings made by any Initial Purchasers or Holders with the NASD);
(ii) all fees and expenses of compliance with federal
securities and state Blue Sky or securities laws;
(iii) all expenses of printing (including printing of
Prospectuses and certificates for the Common Stock to be issued upon
conversion of the Notes, and related messenger and delivery services and
telephone expenses, if any);
(iv) all fees and disbursements of counsel to the Issuer and,
subject to Section 5(b) below, the Holders of Transfer Restricted
Securities;
(v) all application and filing fees in connection with
listing (or authorizing for quotation) the Common Stock on a national
securities exchange or automated quotation system pursuant to the
requirements hereof; and
(vi) all fees and disbursements of independent certified
public accountants of the Issuer (including the expenses of any special
audit and comfort letters required by or incident to such performance).
The Issuer shall bear its internal expenses (including, without
limitation, all salaries and expenses of its officers and employees performing
legal, accounting or other duties), the expenses of any annual audit and the
fees and expenses of any Person, including special experts, retained by the
Issuer.
(b) In connection with the Shelf Registration Statement
required by this Agreement, the Issuer shall reimburse the Initial Purchasers
and the Holders of Transfer Restricted Securities being registered pursuant to
the Shelf Registration Statement, as applicable, for the reasonable fees and
disbursements of not more than one counsel, which shall be Simpson Thacher &
Bartlett, or such other counsel as may be chosen by a Majority of Holders for
whose benefit the Shelf Registration Statement is being prepared.
6. INDEMNIFICATION AND CONTRIBUTION.
(a) The Issuer shall indemnify and hold harmless each Holder,
such Holder's officers, employees representatives and agents and each person, if
any, who controls such Holder within the meaning of the Securities Act
(collectively the "Indemnified Holders" and each an "Indemnified Holder")
against any loss, claim, damage or liability, joint or several, or any action in
respect thereof (including, but not limited to, any loss, claim, damage,
liability or action
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relating to resales of the Transfer Restricted Securities), to which such
Indemnified Holder may become subject, under the Securities Act, the Exchange
Act or otherwise, insofar as any such loss, claim, damage, liability or action
arises out of, or is based upon:
(i) any untrue statement or alleged untrue statement of a
material fact contained in (A) the Shelf Registration Statement or
Prospectus or any amendment or supplement thereto or (B) any blue sky
application or other document or any amendment or supplement thereto
prepared or executed by the Issuer (or based upon written information
furnished by or on behalf of the Issuer expressly for use in such blue sky
application or other document or amendment on supplement) filed in any
jurisdiction specifically for the purpose of qualifying any or all of the
Transfer Restricted Securities under the securities law of any state or
other jurisdiction (such application or document being hereinafter called a
"Blue Sky Application"); or
(ii) the omission or alleged omission to state therein 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,
and shall reimburse each Indemnified Holder promptly for any legal or other
expenses reasonably incurred by such Indemnified Holder in connection with
investigating or preparing to defend or defending against or appearing as a
third party witness in connection with any such loss, claim, damage, liability
or action as such expenses are incurred; PROVIDED, HOWEVER, that the Issuer
shall not be liable in any such case to the extent that any such loss, claim,
damage, liability or action arises out of, or is based upon, any untrue
statement in or alleged untrue statement or omission or alleged omission from
the Shelf Registration Statement or Prospectus or amendment or supplement
thereto or Blue Sky Application in reliance upon and in conformity with written
information furnished to the Issuer by any Holder specifically for use therein.
This indemnity agreement is not exclusive and will be in addition to any
liability which the Issuer might otherwise have and shall not limit any rights
or remedies which may otherwise be available at law or in equity to each
Indemnified Holder.
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(b) Each Holder, severally and not jointly, shall indemnify and
hold harmless the Issuer, its officers, employees, representatives, agents,
directors and each person, if any, who controls the Issuer within the meaning of
the Securities Act or the Exchange Act (collectively the "ISSUER INDEMNIFIED
PARTIES" and each an "ISSUER INDEMNIFIED PARTY"), from and against any loss,
claim, damage or liability, joint or several, or any action in respect thereof,
to which the Issuer Indemnified Parties may become subject, under the Securities
Act, the Exchange Act or otherwise, insofar as any such loss, claim, damage,
liability or action arises out of, or is based upon:
(i) any untrue statement or alleged untrue statement of a
material fact contained in the Shelf Registration Statement or Prospectus
or any amendment or supplement thereto or any Blue Sky Application; or
(ii) the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading,
but in each case only to the extent 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 to the Issuer by or on behalf of a
Holder specifically for use therein, and shall reimburse the Issuer Indemnified
Party for any legal or other expenses reasonably incurred by such parties in
connection with investigating or defending or preparing to defend against or
appearing as a third party witness in connection with any such loss, claim,
damage, liability or action as such expenses are incurred. This indemnity
agreement is not exclusive and will be in addition to any liability which the
Holders might otherwise have and shall not limit any rights or remedies which
may otherwise be available at law or in equity to the Issuer Indemnified
Parties.
(c) Promptly after receipt by an indemnified party under this
Section 6 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 6, notify the indemnifying party in
writing of the claim or the commencement of that action; PROVIDED, HOWEVER, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 6 except to the extent it did not
otherwise learn of such action or has been materially prejudiced by such failure
and, PROVIDED, FURTHER, that the failure to notify the indemnifying party shall
not relieve it from any liability which it may have to an indemnified party
otherwise than under this Section 6. If any such claim or action shall be
brought against an indemnified party, and it shall notify the indemnifying party
thereof, the indemnifying party shall be entitled to participate therein and, to
the extent that it wishes, jointly with any other similarly notified
indemnifying party, to assume the defense thereof with counsel reasonably
satisfactory to the indemnified party. After notice from the indemnifying party
to the indemnified party of its election to assume the defense of such claim or
action, the indemnifying party shall not be liable to the indemnified party
under this Section 6 for any legal or other expenses subsequently incurred by
the indemnified party in connection with the defense thereof other than
reasonable costs of investigation; PROVIDED, HOWEVER, that any indemnified party
shall have the right to employ separate counsel in any such action and to
participate in the defense
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thereof but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless:
(i) the employment thereof at the indemnifying party's
expense has been specifically authorized by the indemnifying party in
writing,
(ii) both the indemnified party and the indemnifying party
are actual or potential defendants and such indemnified party shall have
been advised by such counsel that there may be one or more legal defenses
available to it which are different from or additional to those available
to the indemnifying party and in the reasonable judgment of such counsel it
is advisable for such indemnified party to employ separate counsel, or
(iii) the indemnifying party has failed to assume the defense
of such action or employ counsel reasonably satisfactory to the indemnified
party within a reasonable time after notice from the indemnified party, in
which case, if such indemnified party notifies the indemnifying party in
writing that it elects to employ separate counsel at the expense of the
indemnifying party, the indemnifying party shall not have the right to
assume the defense of such action on behalf of such indemnified party, it
being 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 arising out of the same general
allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys at any time for all
such indemnified parties, which firm shall be designated in writing by SG
Cowen if the indemnified parties under this Section 6 consist of any
Indemnified Holders, or by the Issuer if the indemnified parties under this
Section 6 consist of any Issuer Indemnified Parties.
Each indemnified party, as a condition of the indemnity agreements contained in
Sections 6(a) and 6(b), shall use all reasonable efforts to cooperate with the
indemnifying party in the defense of any such action or claim. Subject to the
provisions of Section 6(d) below, no indemnifying party shall be liable for any
settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld), but if settled with its written
consent or if there is a final judgment for the plaintiff in any such action,
the indemnifying party agrees to indemnify and hold harmless any indemnified
party from and against any loss or liability by reason of such settlement or
judgment.
(d) In any case in which an indemnifying party refuses or fails
to assume the defense of a matter to which indemnification may be sought by an
indemnified party hereunder, such indemnifying party agrees that it shall be
liable for any settlement of the nature contemplated by this Section 6 effected
without its written consent if (i) 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 (ii) 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
unavailable or insufficient to hold harmless an indemnified party under Section
6(a) or 6(b) then each
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indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof:
(i) in such proportion as is appropriate to reflect the
relative benefits received by the Issuer from the offering and sale of the
Transfer Restricted Securities on the one hand and a Holder with respect to
the sale by such Holder of the Transfer Restricted Securities on the other,
or
(ii) if the allocation provided by clause (6)(e)(i) is not
permitted by applicable law or the indemnified party failed to give the
notice under subsection (c) above, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Issuer on the one hand and the Holders on
the other with respect to the statements or omissions that resulted in such
loss, claim, damage or liability, or action in respect thereof, as well as
any other relevant equitable considerations.
The relative benefits received by the Issuer on the one hand and a Holder on the
other with respect to such offering and such sale shall be deemed to be in the
same proportion as the total net proceeds from the offering of the Notes
purchased under the Purchase Agreement (before deducting expenses) received by
or on behalf of the Issuer as set forth in the table on the cover of the
Offering Memorandum, dated August 3, 2000, on the one hand, bear to the total
gross proceeds received by or on behalf of such Holder with respect to its sale
of Transfer Restricted Securities on the other. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Issuer on the one hand or
the Holders on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The Issuer and each Holder agree that it would not
be just and equitable if the contributions pursuant to this Section 6(e) were
determined by PRO RATA allocation (even if the several Holders were treated as
one entity for such purpose) or by any other method of allocation that does not
take into account the equitable considerations referred to herein. The amount
paid or payable by an indemnified party as a result of the loss, claim, damage
or liability, or action in respect thereof, referred to above in this Section
6(e) shall be deemed to include, for purposes of this Section 6(e), any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending or preparing to defend any such action or claim.
Notwithstanding the provisions of this Section 6(e), no Holder shall be required
to contribute any amount in excess of the amount by which the total price at
which the Transfer Restricted Securities purchased by it and distributed to the
public were offered to the public less the amount of any damages which such
Holder has otherwise paid or become liable to pay by reason of any untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Holders' obligations to
contribute as provided in this Section 6(e) are several and not joint.
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7. RULE 144A. In the event the Issuer is not subject to Section
13 or 15(d) of the Exchange Act, the Issuer hereby agrees with each Holder, for
so long as any Transfer Restricted Securities remain outstanding, to make
available to any Holder or beneficial owner of Transfer Restricted Securities in
connection with any sale thereof and any prospective purchaser of such Transfer
Restricted Securities from such Holder or beneficial owner, the information
required by Rule 144A(d)(4) under the Securities Act in order to permit resales
of such Transfer Restricted Securities pursuant to Rule 144A.
8. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. No Holder may
participate in any Underwritten Registration hereunder unless such Holder:
(i) agrees to sell such Holder's Transfer Restricted
Securities on the basis provided in any underwriting arrangements approved
by the Persons entitled hereunder to approve such arrangements (such
arrangements to include, but are not limited to, the Holder (w) being named
as a selling shareholder in the related prospectus; (x) delivering a
prospectus to purchasers; (y) being subject to certain of the civil
liability provisions under the Securities Act in connection with such
Holder's sales; and (z) being bound by the provisions of this Agreement
which are applicable to such Holder (including certain indemnification
rights and obligations)) and
(ii) completes and executes all reasonable questionnaires,
powers of attorney, indemnities, underwriting agreements, lock-up letters
and other documents required under the terms of such underwriting
arrangements.
9. SELECTION OF UNDERWRITERS. The Holders of Transfer
Restricted Securities covered by the Shelf Registration Statement who desire to
do so may sell such Transfer Restricted Securities in an Underwritten Offering.
In any such Underwritten Offering, the investment banker or investment bankers
and manager or managers that will administer the offering will be selected by a
Majority of Holders whose Transfer Restricted Securities are included in such
offering; provided, that such investment bankers and managers must be reasonably
satisfactory to the Issuer.
10. MISCELLANEOUS.
(a) REMEDIES. The Issuer acknowledges and agrees that any
failure by the Issuer to comply with its obligations under Section 2 hereof may
result in material irreparable injury to the Initial Purchasers or the Holders
for which there is no adequate remedy at law, that it will not be possible to
measure damages for such injuries precisely and that, in the event of any such
failure, the Initial Purchasers or any Holder may obtain such relief as may be
required to specifically enforce the Issuer's obligations under Section 2
hereof. The Issuer further agrees to waive the defense in any action for
specific performance that a remedy at law would be adequate.
(b) ADJUSTMENTS AFFECTING TRANSFER RESTRICTED SECURITIES. The
Issuer shall not, directly or indirectly, take any action with respect to the
Transfer Restricted Securities as a class
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that would adversely affect the ability of the Holders of Transfer Restricted
Securities to include such Transfer Restricted Securities in a registration
undertaken pursuant to this Agreement.
(c) NO INCONSISTENT AGREEMENTS. The Issuer will not, on or
after the date of this Agreement, enter into any agreement with respect to its
securities that is inconsistent with the rights granted to the Holders in this
Agreement or otherwise conflicts with the provisions hereof. The Issuer has not
previously entered into any agreement (which has not expired or been terminated)
granting any registration rights with respect to its securities to any Person
which rights conflict with the provisions hereof.
(d) AMENDMENTS AND WAIVERS. This Agreement may not be amended,
modified or supplemented, and waivers or consents to or departures from the
provisions hereof may not be given, unless the Issuer has obtained the written
consent of a Majority of Holders.
(e) NOTICES. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery, first-class
mail (registered or certified, return receipt requested), telex, telecopier, or
air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records
of the registrar under the Indenture or the transfer agent of the Common
Stock, as the case may be; and
(ii) if to the Issuer:
RadiSys Corporation
5445 NE Dawson Creek Drive
Hillsboro, Oregon 97124
Attention: David Cunningham, Esq.
With a copy to:
Stoel Rives LLP
900 SW 5th Avenue, Suite 2600
Portland, Oregon 97204
Attention: John R. Thomas, Esq.
All such notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally delivered; five
Business Days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt acknowledged, if telecopied; and on
the next Business Day, if timely delivered to an air courier guaranteeing
overnight delivery.
(f) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including without limitation and without the need for an express
assignment, subsequent Holders of Transfer Restricted Securities; PROVIDED,
HOWEVER, that (i) this Agreement shall not inure to the benefit of or be binding
upon a successor or assign of a Holder unless and to the extent such successor
or assign acquired Transfer Restricted Securities from such Holder and
(ii) nothing contained herein shall
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be deemed to permit any assignment, transfer or other disposition of Transfer
Restricted Securities in violation of the terms of the Purchase Agreement or the
Indenture. If any transferee of any Holder shall acquire Transfer Restricted
Securities, in any manner, whether by operation of law or otherwise, such
Transfer Restricted Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Transfer Restricted Securities such
person shall be conclusively deemed to have agreed to be bound by and to perform
all of the terms and provisions of this Agreement.
(g) 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 an original and all of which taken
together shall constitute one and the same agreement.
(h) SECURITIES HELD BY THE ISSUER OR THEIR AFFILIATES. Whenever
the consent or approval of Holders of a specified percentage of Transfer
Restricted Securities is required hereunder, Transfer Restricted Securities held
by the Issuer or its "affiliates" (as such term is defined in Rule 405 under the
Securities Act) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
(i) HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(j) GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the law of the State of New York.
(k) SEVERABILITY. If any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(l) ENTIRE AGREEMENT. This Agreement is intended by the parties
as a final expression of their agreement and 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. 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 Issuer with
respect to the Transfer Restricted Securities. This Agreement supersedes all
prior agreements and understandings between the parties with respect to such
subject matter.
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IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first written above.
RADISYS CORPORATION
By: /s/ GLENFORD J. MYERS
--------------------------------
Name:
Title
SG COWEN SECURITIES CORPORATION
BANC OF AMERICA SECURITIES LLC
J.P. MORGAN & CO.
FIRST SECURITY VAN KASPER
By: SG COWEN SECURITIES CORPORATION
By: /s/ JOHN MOSLER
--------------------------------
Name:
Title:
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