Exhibit 4.3
REGISTRATION RIGHTS AGREEMENT
by and among
RF MICRO DEVICES, INC.,
as Issuer
and
THE INITIAL PURCHASERS NAMED HEREIN
Dated as of August 1, 2000
<PAGE>
THIS REGISTRATION RIGHTS AGREEMENT is made and entered into as of
August 1, 2000 by and among RF Micro Devices, Inc., a North Carolina corporation
(the "Company"), and Credit Suisse First Boston Corporation, Banc of America
Securities LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated, Chase
Securities, Inc., CIBC World Markets Corp., and First Union Securities, Inc.
(each, an "Initial Purchaser" and collectively, the "Initial Purchasers")
pursuant to the Purchase Agreement, dated August 7, 2000 (the "Purchase
Agreement"), among the Company and the Initial Purchasers. In order to induce
the Initial Purchasers to enter into the Purchase Agreement, the Company has
agreed to provide the registration rights set forth in this Agreement. The
execution of this Agreement is a condition to the closing under the Purchase
Agreement.
The Company agrees with the Initial Purchasers, (i) for their benefit
as Initial Purchasers and (ii) for the benefit of the beneficial owners
(including the Initial Purchasers) from time to time of the Notes (as defined
herein) and the beneficial owners from time to time of the Underlying Common
Stock (as defined herein) issued upon conversion of the Notes (each of the
foregoing a "Holder" and, together, the "Holders"), as follows:
SECTION 1. DEFINITIONS. Capitalized terms used herein without definition
have their respective meanings set forth in the Purchase Agreement. As used in
this Agreement, the following terms have the following meanings:
"Additional Interest" has the meaning set forth in Section 2(e) hereof.
"Additional Interest Accrual Period" has the meaning set forth in
Section 2(e) hereof.
"Additional Interest Payment Date" means each interest payment date
under the Indenture.
"Affiliate" with respect to any specified person, means an "affiliate,"
as defined in Rule 144, of such person.
"Amendment Effectiveness Deadline Date" has the meaning set forth in
Section 2(d) hereof.
"Applicable Conversion Price" as of any date of determination means the
Conversion Price in effect as of such date of determination or, if no Notes are
then outstanding, the Conversion Price that would be in effect were Notes then
outstanding.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday that is not a day on which banking institutions in The City of New York
are authorized or obligated by law or executive order to close.
"Common Stock" means the shares of common stock, no par value, 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.
"Company" has the meaning set forth in the first paragraph of this
Agreement and also includes the Company's successors.
"Conversion Price" has the meaning assigned such term in the Indenture.
"CSFBC" means Credit Suisse First Boston Corporation.
"Deferral Notice" has the meaning set forth in Section 3(i) hereof.
"Deferral Period" has the meaning set forth in Section 3(i) hereof.
"Effectiveness Deadline Date" has the meaning set forth in Section 2(a)
hereof.
"Effectiveness Period" means two years from the date of filing of the
Initial Shelf Registration Statement or, if a shorter period, from the date of
the Initial Shelf Registration Statement until either of (i) the sale pursuant
to a Shelf Registration Statement of all the Registrable Securities or (ii) the
expiration of the holding period applicable to the Registrable Securities held
by Holders that are not Affiliates of the Company under Rule 144(k) under the
Securities Act.
"Event" has the meaning set forth in Section 2(e) hereof.
"Event Date" has the meaning set forth in Section 2(e) hereof.
"Event Termination Date" has the meaning set forth in Section 2(e)
hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC promulgated thereunder.
"Filing Deadline Date" has the meaning set forth in Section 2(a)
hereof.
"Holder" has the meaning set forth in the second paragraph of this
Agreement.
"Indenture" means the Indenture dated as of the date hereof between the
Company and First Union National Bank, as trustee, pursuant to which the Notes
are being issued.
"Initial Purchasers" has the meaning set forth in the first paragraph
of this Agreement.
"Initial Shelf Registration Statement" has the meaning set forth in
Section 2(a) hereof.
"Issue Date" means August 11, 2000, or if later, the latest date of
original issuance of the Notes.
"Losses" has the meaning set forth in Section 6 hereof.
"Material Event" has the meaning set forth in Section 3(i) hereof.
"Notes" means the 3.75% Convertible Subordinated Notes due August 15,
2005 of the Company to be purchased pursuant to the Purchase Agreement.
"Notice and Questionnaire" means a written notice delivered to the
Company by a Holder containing any information with respect to the Holder
necessary to amend the Registration Statement or supplement the related
Prospectus with respect to the intended distribution of Registrable Securities
by such Holder.
"Notice Holder" means, on any date, any Holder that has delivered a
Notice and Questionnaire to the Company on or prior to such date and holds
Registrable Securities, as of such dates.
"Offering Circular" means the final offering circular dated August 7,
2000 relating to the issuance of the Notes.
"Prospectus" means the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any amendment or prospectus
supplement, including post-effective amendments, and all materials incorporated
by reference or explicitly deemed to be incorporated by reference in such
Prospectus.
"Purchase Agreement" has the meaning set forth in the first paragraph
of this Agreement.
"Record Holder" means the holder of record of Registrable Securities on
the record date with respect to the interest payment date under the Indenture on
which Additional Interest is payable.
"Registrable Securities" means the Notes, until such Notes have been
converted into or exchanged for the Underlying Common Stock and, at all times
subsequent to any such conversion or exchange, the Underlying Common Stock and
any securities into or for which such Underlying Common Stock 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,
(A) the earliest of (i) its effective registration under the Securities Act and
resale in accordance with the Registration Statement covering it, (ii)
expiration of the holding period that would be applicable thereto under Rule
144(k) under the Securities Act were it not held by an Affiliate of the Company
or (iii) its sale to the public pursuant to Rule 144, and (B) as a result of the
event or circumstance described in any of the foregoing clauses (i) through
(iii), the legends with respect to transfer restrictions required under the
Indenture are removed or removable in accordance with the terms of the Indenture
or such legend, as the case may be.
"Registration Expenses" has the meaning set forth in Section 5 hereof.
"Registration Statement" means any registration statement of the
Company that covers any of the Registrable Securities pursuant to the provisions
of this Agreement including the Prospectus, amendments and supplements to such
registration statement, including post-effective amendments, all exhibits, and
all materials incorporated by reference or explicitly deemed to be incorporated
by reference in such registration statement.
"Restricted Securities" has the meaning for this term as defined in
Rule 144.
"Rule 144" means Rule 144 under the Securities Act, as such rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the SEC.
"Rule 144A" means Rule 144A under the Securities Act, as such rule may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated by the SEC thereunder.
"Shelf Registration Statement" has the meaning set forth in Section
2(a) hereof.
"Subsequent Shelf Registration Statement" has the meaning set forth in
Section 2(b) hereof.
"TIA" means the Trust Indenture Act of 1939, as amended.
"Trustee" means First Union National Bank (or any successor entity),
the Trustee under the Indenture.
"Underlying Common Stock" means the Common Stock into which the Notes
are convertible or issued upon any such conversion.
SECTION 2. SHELF REGISTRATION.
(a) The Company shall prepare and file or cause to be prepared
and filed with the SEC, as soon as practicable but in any event by the date (the
"Filing Deadline Date") ninety (90) days after the Issue Date, a Registration
Statement for an offering to be made on a delayed or continuous basis pursuant
to Rule 415 of the Securities Act (a "Shelf Registration Statement") registering
the resale from time to time by Holders thereof of all of the Registrable
Securities (the "Initial Shelf Registration Statement"). The Initial Shelf
Registration Statement shall be on an 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 reasonable efforts to
cause the Initial Shelf Registration Statement to be declared effective under
the Securities Act as promptly as is practicable but in any event within one
hundred and eighty (180) days after the Issue Date (the "Effectiveness Deadline
Date"), and to keep the Initial Shelf Registration Statement (or any Subsequent
Shelf Registration Statement) continuously effective under the Securities Act
until the expiration of the Effectiveness Period. At the time the Initial Shelf
Registration Statement is declared effective, each Holder that became a Notice
Holder and that has provided the Company with an appropriately completed Notice
and Questionnaire, in each case on or prior to the date five (5) Business Days
prior to such time of effectiveness, shall be named as a selling securityholder
in the Initial Shelf Registration Statement and the related Prospectus in such a
manner as to permit such Holder to deliver such Prospectus to purchasers of
Registrable Securities in accordance with applicable law. None of the Company's
security holders (other than the Holders of Registrable Securities) shall have
the right to include any of the Company's securities in the Shelf Registration
Statement.
(b) If the Initial Shelf Registration Statement or any
Subsequent Shelf Registration Statement ceases to be effective for any reason at
any time during the Effectiveness Period (other than because all Registrable
Securities registered thereunder have been resold pursuant thereto or 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
reasonable efforts to cause the Subsequent Shelf Registration Statement to
become effective as promptly as is practicable after such filing and to keep
such 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 (i) an Initial Purchaser in
the event that it is participating in the Shelf Registration Statement or (ii)
the Trustee on behalf of a majority in interest 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 five (5) Business Days prior to any intended distribution of
Registrable Securities under the Shelf Registration Statement. From and after
the date the Initial Shelf Registration Statement is declared effective, the
Company shall, as promptly as practicable after the date a Notice and
Questionnaire is delivered (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 document required under the Securities Act so that the Holder
delivering such Notice and Questionnaire is named as a selling securityholder in
the Shelf Registration Statement and the related Prospectus in such a manner as
to permit such Holder to deliver such Prospectus to purchasers of the
Registrable Securities in accordance with applicable law and, if the Company
shall file a post-effective amendment to the Shelf Registration Statement, use
reasonable efforts to cause such post-effective amendment to be declared
effective under the Securities Act as promptly as is practicable, but in any
event by the date (the "Amendment Effectiveness Deadline Date") that is
forty-five (45) days after the date such post-effective amendment is required by
this clause to be filed; (ii) provide such Holder copies of any documents filed
pursuant to Section 2(d)(i); and (iii) notify such Holder as promptly as
practicable after the effectiveness under the Securities Act of any
post-effective amendment filed pursuant to Section 2(d)(i); provided that if
such Notice and Questionnaire is delivered during a Deferral Period, the Company
shall so inform the Holder delivering such Notice and Questionnaire and shall
take the actions set forth in clauses (i), (ii) and (iii) above upon expiration
of the Deferral Period in accordance with Section 3(i). Notwithstanding anything
contained herein to the contrary, (i) the Company shall be under no obligation
to name any Holder that is not a Notice Holder as a selling securityholder in
any Registration Statement or related Prospectus and (ii) the Amendment
Effectiveness Deadline Date shall be extended by up to ten (10) days from the
expiration of a Deferral Period (and the Company shall incur no obligation to
pay Additional Interest during such extension) if such Deferral Period is in
effect on the Amendment Effectiveness Deadline Date; and provided further, that
the Company shall not be obligated to file more than one (1) post-effective
amendment or supplement in any twenty (20) day period following the date the
Initial Shelf Registration Statement is declared effective for the purpose of
naming Holders as selling securityholders who were not named in the Initial
Shelf Registration Statement at the time of effectiveness. Any Holder who,
subsequent to the date the Initial Registration Statement is declared effective,
provides a Notice and Questionnaire required by this Section 2(d) pursuant to
the provisions of this Section (whether or not such Holder has supplied the
Notice and Questionnaire at the time the Initial Shelf Registration Statement
was declared effective) shall be named as a selling securityholder in the Shelf
Registration Statement and 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) within the time
period required therein or (iv) the aggregate duration of Deferral Periods in
any applicable period exceeds the number of days permitted in respect of such
period pursuant to Section 3(i) hereof (each of the events of a type described
in any of the foregoing clauses (i) through (iv) are individually referred to
herein as an "Event," and the Filing Deadline Date in the case of clause (i),
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) and 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 (iv) 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), and 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 (iv).
Accordingly, subject to the last sentence of Section 3(i), with respect
to the period commencing on (and including) any Event Date and ending on (but
excluding) the relevant Event Termination Date (an "Additional Interest Accrual
Period"), the Company agrees to pay, as additional interest and not as a
penalty, an amount (the "Additional Interest"), payable on the Additional
Interest Payment Dates to Record Holders accruing for each portion of such
Additional Interest Accrual Period beginning on and including an Additional
Interest Payment Date (or, in respect of the first time that the Additional
Interest is to be paid to Holders on an Additional Interest 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
Additional Interest Accrual Period or (B) the next Additional Interest Payment
Date at a rate per annum equal to one-half of one percent (0.5%) of the
aggregate principal amount of such Notes that are Registrable Securities or, in
the case of Notes that have been converted into or exchanged for Underlying
Common Stock, at a rate per annum equal to one half of one percent (0.5%) of the
Applicable Conversion Price of such shares of Underlying Common Stock that are
Registrable Securities, as the case may be, in each case determined as of the
Business Day immediately preceding the next Additional Interest Payment Date;
provided that in the case of an Additional Interest 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 Additional Interest shall accrue in
respect of Registrable Securities held by, and shall be paid to, only 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 Additional Interest accrued
with respect to any Note or portion thereof called for redemption on a
redemption date or converted into Underlying Common Stock on a conversion date
prior to the Additional Interest Payment Date, shall, in any such event, be paid
instead to the Holder who submitted such Note or portion thereof for redemption
or conversion on the applicable redemption date or conversion date, as the case
may be, on such date (or promptly following the conversion date, in the case of
conversion). Notwithstanding the foregoing, no Additional Interest 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) the expiration of the
Effectiveness Period. The rate of accrual of the Additional Interest 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 Additional Interest to the
Holders of Registrable Securities pursuant to this Section, the accrual of
Additional Interest will cease (without in any way limiting the effect of any
subsequent Event requiring the payment of Additional Interest by the Company).
The Trustee shall be entitled, on behalf of Holders of Notes or
Underlying Common Stock, to seek any available remedy for the enforcement of
this Agreement, including the payment of any Additional Interest; provided that,
Additional Interest payable under this Agreement shall be the sole quantum of
damages payable for breach by the Company of its registration obligations under
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 additional interest provided for in
this Section 2(e) constitutes a reasonable estimate of the damages that may be
incurred by Holders of Registrable Securities by reason of the failure of the
Initial Shelf Registration Statement to be filed or declared effective or
available for effecting resales of Registrable Securities in accordance with the
provisions hereof.
SECTION 3. REGISTRATION PROCEDURES. In connection with the
registration obligations of the Company under Section 2 hereof, the Company
shall:
(a) Before filing any Registration Statement or Prospectus or
any amendments or supplements thereto with the SEC, furnish to CSFBC and counsel
to the Initial Purchasers copies of all such documents proposed to be filed and
use its reasonable efforts to reflect in each such document when so filed with
the SEC such comments as the Initial Purchasers and counsel to the Initial
Purchaser reasonably shall propose within three (3) Business Days of the
delivery of such copies to CSFBC and counsel 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 use its reasonable efforts to comply with the provisions of
the Securities Act applicable to it with respect to the disposition of all
securities covered by such Registration Statement during the Effectiveness
Period in accordance with the intended methods of disposition by the sellers
thereof set forth in such Registration Statement as so amended or such
Prospectus as so supplemented.
(c) As promptly as practicable (i) give notice to the Holders,
counsel to the Notice Holders and the Initial Purchasers when any Registration
Statement or any post-effective amendment has been declared effective and (ii)
give notice to the Notice Holders, counsel to the Notice Holders and the Initial
Purchasers (A) 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, (B)
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, (C) of the
receipt by the Company of any notification with respect to the suspension of the
qualification or exemption from qualification of any of the Registrable
Securities for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose, (D) of the occurrence of (but not the nature of or
details concerning) a Material Event and (E) 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 reasonable efforts to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement or the lifting of
any suspension of the qualification (or exemption from qualification) of any of
the Registrable Securities for sale in any jurisdiction in which they have been
qualified for sale, in either case as promptly as practicable.
(e) As promptly as practicable (if reasonably requested by any
Notice Holder or by an Initial Purchaser (with respect to any portion of an
unsold allotment from the original offering if such Initial Purchaser is
participating in the Shelf Registration Statement)), incorporate in a Prospectus
supplement or post-effective amendment to a Registration Statement such
information as such Notice Holder or Initial Purchaser shall, on the basis of an
opinion of nationally recognized counsel experienced in such matters, determine
to be required to be included therein 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) As promptly as practicable furnish to each Notice Holder
and CSFBC, 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 CSFBC, 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 a Shelf Registration Statement, register or qualify or cooperate
with the Notice Holders in connection with the registration or qualification (or
exemption from such registration or qualification) of such Registrable
Securities for offer and sale under the securities or Blue Sky laws of such
jurisdictions within the United States as any Notice Holder reasonably requests
in writing (which request may be included in the Notice and Questionnaire);
prior to any public offering of the Registrable Securities pursuant to a Shelf
Registration Statement, 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 a Shelf Registration Statement or the initiation
of proceedings with respect to a 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, public filing with the SEC or other
similar event with respect to the Company that, in the reasonable discretion of
the Company, makes it appropriate to suspend the availability of a Shelf
Registration Statement and the related Prospectus, (i) in the case of clause (B)
above, subject to the next sentence, as promptly as practicable prepare and
file, if necessary pursuant to applicable law, a post-effective amendment to
such Registration Statement or a supplement to the related Prospectus or any
document incorporated therein by reference or file any other required document
that would be incorporated by reference into such Registration Statement and
Prospectus so that such Registration Statement does not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading, and
such Prospectus does not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, and, in the case of a post-effective amendment to a
Registration Statement, subject to the next sentence, use reasonable efforts to
cause it to be declared effective as promptly as is 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 reasonable efforts to ensure that the use of the Prospectus may
be resumed (x) in the case of clause (A) above, as promptly as is practicable,
(y) in the case of clause (B) above, as soon as, in the sole judgment of the
Company, public disclosure of such Material Event would not be prejudicial to or
contrary to the interests of the Company or, if necessary to avoid unreasonable
burden or expense, as soon as practicable thereafter and (z) in the case of
clause (C) above, as soon as, in the discretion of the Company, such suspension
is no longer appropriate. The Company shall be entitled to exercise its right
under this Section 3(i) to suspend the availability of the Shelf Registration
Statement or any Prospectus, without incurring or accruing any obligation to pay
Additional Interest pursuant to Section 2(e), for one or more periods not to
exceed 30 days in any 3 month period and not to exceed, in the aggregate, 90
days in any 12-month period (such period, during which the availability of the
Registration Statement and any Prospectus is suspended being a "Deferral
Period").
(j) Use reasonable efforts to 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
3-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 periods.
(k) In the case of registration of resales of the Notes, cause
the Indenture to be qualified under the TIA, cooperate with the Trustee and the
Notice Holders 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 commercially reasonable 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.
(l) Cooperate with each Notice Holder to facilitate the timely
preparation and delivery of certificates representing Registrable Securities
sold or to be sold pursuant to a Registration Statement, which certificates
shall not bear any restrictive legends unless required by applicable law, 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 (2) 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 (if appropriate under the
Indenture) and the transfer agent for the Common Stock with printed certificates
for the Registrable Securities that are in a form eligible for deposit with The
Depository Trust Company.
(n) Use reasonable efforts to cause the Underlying Common
Stock to be listed on any securities exchange or any automated quotation system
on which similar securities issued by the Company are then listed, to the extent
the Underlying Common Stock satisfies applicable listing requirements.
(o) Provide such information as is required for any filings
required to be made with the National Association of Securities Dealers, Inc.
(p) If requested in connection with a disposition of
Registrable Securities pursuant to a Registration Statement, make available for
inspection by a representative of the Holders of a majority of the Registrable
Securities being sold and any attorney or accountant retained by such selling
holders, financial and other records, pertinent corporate documents and
properties of the Company and its subsidiaries, and cause the executive
officers, directors and employees of the Company and its subsidiaries to supply
all information reasonably requested by any such representative, attorney or
accountant in connection with such disposition; subject to reasonable assurances
by each such person that such information will be used only in connection with
matters relating to such Registration Statement, 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, unless (i) disclosure of such information is
required by court or administrative order or is necessary to respond to
inquiries of regulatory authorities, (ii) disclosure of such information is
required by law (including any disclosure requirements pursuant to Federal
securities laws in connection with the filing of any Registration Statement or
the use of any prospectus referred to in this Agreement), (iii) such information
becomes generally available to the public other than as a result of a disclosure
or failure to safeguard by any such person or (iv) such information becomes
available to any such person from a source other than the Company and such
source is not bound by a confidentiality agreement.
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 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 the
Company may from time to time reasonably request. Any sale of any Registrable
Securities by any Holder shall constitute a representation and warranty by such
Holder that the information relating to such Holder and its plan of distribution
is as set forth in the Prospectus delivered by such Holder in connection with
such disposition, that such Prospectus does not as of the time of such sale
contain any untrue statement of a material fact relating to or provided by such
Holder or its plan of distribution and that such Prospectus does not as of the
time of such sale omit to state any material fact relating to or provided by
such Holder or its plan of distribution necessary to make the statements in such
Prospectus, in the light of the circumstances under which they were made, not
misleading.
Notwithstanding anything to the contrary in this Agreement, to the
extent doing so would give rise to registration rights in favor of any party to
the Second Amended and Restated Registration Rights Agreement, dated as of June
6, 1996, made by and among the Company and the investors party thereto, no
Holder will distribute Underlying Securities constituting Registrable Securities
pursuant to an underwritten public offering to the general public without the
prior written consent of the Company, which consent will not be unreasonably
withheld or delayed.
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 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,
(x) fees and expenses of counsel with respect to filings required to be made
with the National Association of Securities Dealers, Inc. and (y) fees and
expenses required to comply with federal and state securities or Blue Sky laws
(including, without limitation, reasonable 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, (v)
the fees and disbursements of the independent public accountants of the Company,
including the expenses of any special audits or "cold comfort" letters required
by or incident to such performance and compliance, (vi) reasonable fees and
disbursements of the Trustee and of the registrar and transfer agent for the
Common Stock and their respective counsel and (vii) Securities Act liability
insurance obtained by the Company in its sole discretion. In addition, the
Company shall pay the internal expenses of the Company (including, without
limitation, all salaries and expenses of officers and employees performing legal
or accounting duties), the expense of any annual audit, the fees and expenses
incurred in connection with the listing of the Registrable Securities on any
securities exchange on which similar securities of the Company are then listed
and the fees and expenses of any person, including special experts, retained by
the Company. Notwithstanding the provisions of this Section 5, each seller of
Registrable Securities shall pay selling expenses and all registration expenses
to the extent the Company is prohibited from paying such expenses under
applicable law.
SECTION 6. INDEMNIFICATION.
(a) INDEMNIFICATION BY THE COMPANY. The Company shall
indemnify and hold harmless each Notice Holder and each person, if any, who
controls any Notice Holder (within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act) from and against any losses,
liabilities, claims, damages and expenses (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) (collectively, "Losses"), arising out of
or based upon any untrue statement or alleged untrue statement of a material
fact contained in any Registration Statement or Prospectus or in any amendment
or supplement thereto or in any preliminary prospectus, or arising out of or
based upon any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading; provided, however, that the Company shall not be liable in any such
case to the extent that any such Losses arise out of or are based upon an untrue
statement or alleged untrue statement contained in or omission or alleged
omission from any of such documents in reliance upon and conformity with any of
the information relating to the Holders furnished to the Company in writing by a
Holder expressly for use therein; provided further that the indemnification
contained in this paragraph shall not inure to the benefit of any Holder of
Registrable Securities (or to the benefit of any person controlling such Holder)
on account of any such Losses arising out of or based upon an untrue statement
or alleged untrue statement or omission or alleged omission made in any
preliminary prospectus provided in each case the Company has complied with its
several obligations under Section 3(a) hereof if, to the extent that a
prospectus relating to such Securities was required to be delivered by such
Holder under the Securities Act, either (A) (i) such Holder failed to send or
deliver a copy of the Prospectus with or prior to the delivery of written
confirmation of the sale by such Holder to the person asserting the claim from
which such Losses arise and (ii) the Prospectus would have corrected such untrue
statement or alleged untrue statement or such omission or alleged omission, or
(B) (x) such untrue statement or alleged untrue statement, omission or alleged
omission is corrected in an amendment or supplement to the Prospectus and (y)
having previously been furnished by or on behalf of the Company with copies of
the Prospectus as so amended or supplemented, such Holder thereafter fails to
deliver such Prospectus as so amended or supplemented, with or prior to the
delivery of written confirmation of the sale of a Registrable Security to the
person asserting the claim from which such Losses arise.
(b) INDEMNIFICATION BY HOLDERS OF REGISTRABLE SECURITIES.
Each Holder agrees, severally and not jointly, to indemnify and hold harmless
the Company and its respective directors and officers, and each person, if any,
who controls the Company (within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act) or any other Holder, from and
against all Losses arising out of or based upon any untrue statement or alleged
untrue statement of a material fact contained in any Registration Statement or
Prospectus or in any amendment or supplement thereto or in any preliminary
prospectus, or arising out of or based upon any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, to the extent, but 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 information furnished
to the Company in writing by such Holder expressly for use in such Registration
Statement or Prospectus or amendment or supplement thereto. In no event shall
the liability of any selling Holder of Registrable Securities hereunder be
greater in amount than the dollar amount of the net proceeds received by such
Holder upon the sale of the Registrable Securities pursuant to the Registration
Statement giving rise to such indemnification obligation.
(c) CONDUCT OF INDEMNIFICATION PROCEEDINGS. In case any
proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant to
either of the two preceding paragraphs, such person (the "indemnified party")
shall promptly notify the person against whom such indemnity may be sought (the
"indemnifying party") in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the reasonable
fees and disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all indemnified parties, and that all such fees and
expenses shall be reimbursed as they are incurred. Such separate firm shall be
designated in writing by, in the case of parties indemnified pursuant to Section
6(a), the Holders of a majority (with Holders of Notes deemed to be the Holders,
for purposes of determining such majority, of the number of shares of Underlying
Common Stock into which such Notes are or would be convertible or exchangeable
as of the date on which such designation is made) of the Registrable Securities
covered by the Registration Statement held by Holders that are indemnified
parties pursuant to Section 6(a) and, in the case of parties indemnified
pursuant to Section 6(b), the Company. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened proceeding
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such proceeding and does
not include a statement as to, or an admission of, fault, culpability or a
failure to act by or on behalf of an indemnified party.
(d) CONTRIBUTION. To the extent that the indemnification
provided for in this Section 6 is unavailable to an indemnified party under
Section 6(a) or 6(b) hereof in respect of any Losses or is insufficient to hold
such indemnified party harmless, then each applicable indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount paid
or payable by such indemnified party as a result of such Losses (i) in such
proportion as is appropriate to reflect the relative benefits received by the
indemnifying party or parties on the one hand and the indemnified party or
parties on the other hand or (ii) if the allocation provided in clause (i) above
is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also
to the relative fault of the indemnifying party or parties on the one hand and
of the indemnified party or parties on the other hand in connection with the
statements or omissions that resulted in such Losses, as well as any other
relevant equitable considerations. Benefits received by the Company shall be
deemed to be equal to the total net proceeds from the initial placement pursuant
to the Purchase Agreement (before deducting expenses) of the Notes pursuant to
the Purchase Agreement. Benefits received by any Holder shall be deemed to be
equal to the value of receiving Registrable Securities that are registered under
the Securities Act. The relative fault of the Holders on the one hand and the
Company on the other hand shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Holders or by the Company, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. Benefits received by any underwriter shall be deemed to
be equal to the total underwriting discounts and commissions, as set forth on
the cover page of the Prospectus forming a part of the Registration Statement
which resulted in such Losses. The Holders' respective obligations to contribute
pursuant to this paragraph are several in proportion to the respective number of
Registrable Securities they have sold pursuant to a Registration Statement, and
not joint.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 6(d) were determined by pro rata
allocation or by any other method or allocation that does not take into account
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an indemnified party as a result of the Losses
referred to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding this Section 6(d), an
indemnifying party that is a selling Holder of Registrable Securities shall not
be required to contribute any amount in excess of the amount by which the net
proceeds received by such indemnifying party from Registrable Securities sold
and distributed to the public exceeds the amount of any damages that such
indemnifying party has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
(e) The indemnity, contribution and expense reimbursement
obligations of the parties hereunder shall be in addition to any liability any
indemnified party may otherwise have hereunder, under the Purchase Agreement or
otherwise.
(f) The indemnity and contribution provisions contained in
this Section 6 shall remain operative and in full force and effect regardless of
(i) any termination of this Agreement, (ii) any investigation made by or on
behalf of any Holder or any person controlling any Holder, or the Company, or
the Company's officers or directors or any person controlling the Company and
(iii) the sale of any Registrable Securities by any Holder.
SECTION 7. INFORMATION REQUIREMENTS. The Company covenants that, if at
any time before the end of the Effectiveness Period the Company is not subject
to the reporting requirements of the Exchange Act, it will cooperate with any
Holder of Registrable Securities and take such further reasonable action as any
Holder of Registrable Securities may reasonably request in writing (including,
without limitation, making such reasonable representations as any such Holder
may reasonably request), all to the extent required from time to time to enable
such Holder to sell Registrable Securities without registration under the
Securities Act within the limitation of the exemptions provided by Rule 144 and
Rule 144A under the Securities Act and customarily taken in connection with
sales pursuant to such exemptions. Upon the written request of any Holder 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 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.
The Company shall file the reports required to be filed by it under the
Exchange Act and shall comply with all other requirements set forth in the
instructions to Form S-3 in order to allow the Company to be eligible to file
registration statements on Form S-3 as soon as is permissible under the
Securities Act.
SECTION 8. MISCELLANEOUS.
(a) NO CONFLICTING AGREEMENTS. The Company (i) 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 or that permits other holders of the Company's outstanding
securities to offer such securities for resale under the Registration Statement,
and (ii) 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 Notes deemed to be the Holders, for
purposes of this Section, of the number of outstanding shares of Underlying
Common Stock into which such Notes are or would be convertible or exchangeable
as of the date on which such consent is requested). Notwithstanding the
foregoing, a waiver or consent to depart from the 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) on the date indicated on the telecopier confirmation report (or,
if such date is not a Business Day, on the Business Day thereafter), if made by
telecopier, (iii) one (1) 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:
(1) if to a Holder of Registrable Securities that is not
a Notice Holder, at the address for such Holder then appearing in the Note
Register (as defined in the Indenture);
(2) if to a Notice Holder, at the most current address
given by such Holder to the Company in a Notice and Questionnaire or any
amendment thereto;
(3) if to the Company, to:
RF Micro Devices, Inc.
7625 Thorndike Road
Greensboro, NC 27409
Attention: Dean Priddy, Chief Financial Officer
Telecopy No.: (336) 931-7578
with a copy to:
Womble Carlyle Sandridge & Rice, PLLC
200 West Second Street
Winston Salem, NC 27102
Attention: Jeffrey C. Howland, Esq.
Telecopy No.: (336) 733-8371
and:
Womble Carlyle Sandridge & Rice, PLLC
301 South College Street
Charlotte, NC 28202
Attention: Douglas A. Mays, Esq.
Telecopy No.: (704) 338-7814
(4) if to the Initial Purchasers to:
Credit Suisse First Boston Corporation
11 Madison Avenue
New York, New York 10010
Attention: Transaction Advisory Group
Telecopy No.: (212) 325-8278
<PAGE>
with a copy to:
Wilson Sonsini Goodrich & Rosati, P.C.
650 Page Mill Road
Palo Alto, CA 94304
Attention: John Fore, Esq.
Telecopy No.: (650) 493-6811
(5) if to counsel for the Initial Purchasers, to
Wilson Sonsini Goodrich & Rosati, P.C. at the above address and telecopy number
(or as otherwise requested by the Notice Holders), or to such other address as
such person may have furnished to the other persons identified in this Section
8(c) in writing in accordance herewith.
(d) APPROVAL OF HOLDERS. Whenever the consent or approval of
Holders of a specified percentage of Registrable Securities is required
hereunder, Registrable Securities held by the Company 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 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
PRINCIPLES OF CONFLICTS OF LAWS.
(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 reasonable 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. No party hereto shall have any rights, duties or
obligations other than those specifically set forth in this Agreement.
(k) TERMINATION. This Agreement and the obligations of
the parties hereunder shall terminate upon the end of the Effectiveness Period,
except for any liabilities or obligations under Section 5 or 6 hereof and the
obligations to make payments of and provide for additional interest under
Section 2(e) hereof to the extent such damages have accrued prior to the end of
the Effectiveness Period, each of which shall remain in effect in accordance
with its terms.
[Signature page follows]
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
RF MICRO DEVICES, INC.
By: /s/ David A. Norbury
-------------------------------
Name: David A. Norbury
Title: President, Chief Executive Officer
and Director
The foregoing Registration Rights Agreement is hereby confirmed and accepted as
of the date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
BANC OF AMERICA SECURITIES LLC
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
CHASE SECURITIES INC.
CIBC WORLD MARKETS CORP.
FIRST UNION SECURITIES, INC.
By: CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/
----------------------------------
Name:
Title:
<PAGE>
