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Exhibit 4.2
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4 1/2% CONVERTIBLE NOTES
DUE 2005
REGISTRATION RIGHTS AGREEMENT
Dated as of September 12, 2000
by and among
TRANSWITCH CORPORATION,
as the Company,
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,
ROBERTSON STEPHENS INC.,
and
BANC OF AMERICA SECURITIES LLC
as Initial Purchasers
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TABLE OF CONTENTS
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Page
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SECTION 1. Definitions.................................................. 1
SECTION 2. Shelf Registration Statement................................. 4
SECTION 3. Liquidated Damages........................................... 6
SECTION 4. Registration Procedures...................................... 7
SECTION 5. Registration Expenses........................................ 12
SECTION 6. Indemnification.............................................. 13
SECTION 7. Underwritten Registration.................................... 15
SECTION 8. Miscellaneous................................................ 16
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Execution Copy
This Registration Rights Agreement is made and entered into as of September
12, 2000 by and among TranSwitch Corporation, a Delaware corporation (the
"Company"), MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, ROBERTSON
STEPHENS INC., and BANC OF AMERICA SECURITIES LLC (the "Initial Purchasers") who
have purchased or have the right to purchase up to $400,000,000 principal amount
of 4-1/2% Convertible Notes due 2005 (the "Notes") of the Company with the
option to purchase a further $60,000,000 in principal amount of Notes pursuant
to the Purchase Agreement (as such term is defined below).
This Agreement is made pursuant to the Purchase Agreement, dated September
12, 2000, among the Company and the Initial Purchasers (the "Purchase
Agreement"). In order to induce the Initial Purchasers to enter into the
Purchase Agreement, the Company has agreed to provide the registration rights
provided for in this Agreement to the Initial Purchasers and their respective
direct and indirect transferees (i) for the benefit of the Initial Purchasers;
(ii) for the benefit of the holders from time to time of the Notes (including
the Initial Purchasers); (iii) for the benefit of the holders from time to time
of the Common Stock issuable or issued upon conversion of the Notes; and (iv)
for the benefit of the holders from time to time of the securities constituting
the Transfer Restricted Securities. The execution of this Agreement is a
condition to the closing of the transactions contemplated by the Purchase
Agreement, and each Holder (as defined below) by participating in a Registration
Statement agrees to be bound by this Agreement.
The parties hereby agree as follows:
SECTION 1. Definitions. As used in this Agreement, the following terms
shall have the following meanings:
Act: As defined in this Section 1.
Affiliate: An affiliate of any specified person shall mean any other person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified person. For the purposes of this definition,
"control," when used with respect to any person, means the power to direct the
management and policies of such person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise and the terms
"affiliated," "controlling" and "controlled" have meanings correlative to the
foregoing.
Agreement: This Registration Rights Agreement, as the same may be amended,
supplemented or modified from time to time in accordance with the terms hereof.
Business Day: Each Monday, Tuesday, Wednesday, Thursday and Friday that is
not a day on which banking institutions in New York, New York are authorized or
obligated by law or executive order to close.
Closing Date: September 12, 2000.
Common Stock: Common Stock, $.001 par value per share, of the Company and
any other shares of common stock as may constitute "Common Stock" for purposes
of the Indenture as issuable or issued upon conversion of the Notes.
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Company: TranSwitch Corporation, a Delaware corporation, and any successor
corporation thereto.
Controlling Person: As defined in Section 6(a) hereof.
Damages Payment Date: Each of the semiannual interest payment dates
provided in the Notes.
Effectiveness Period: As defined in Section 2(a) hereof.
Effectiveness Target Date: The 120th day following the Closing Date.
Exchange Act: The Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated by the SEC thereunder.
Filing Date: The 60th day after the Closing Date.
Holder: Each owner of any Transfer Restricted Securities.
Indemnified Person: As defined in Section 6(a) hereof.
Indenture: The Indenture, dated as of the date hereof, between the Company
and the Trustee, pursuant to which the Notes are to be issued, as the same may
be amended, modified or supplemented from time to time in accordance with the
terms thereof.
Initial Purchasers: As defined in the first paragraph hereof.
Liquidated Damages: As defined in Section 3(a) hereof.
Notice and Questionnaire: The Notice and Questionnaire attached hereto as
Exhibit A.
Proceeding: An action, claim, suit or proceeding (including, without
limitation, an investigation or partial proceeding, such as a deposition),
whether commenced or threatened.
Prospectus: The prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed in reliance upon Rule 430A), as
amended or supplemented by any prospectus supplement, with respect to the resale
of any of the Transfer Restricted Securities covered by such Registration
Statement, and all other amendments and supplements to any such prospectus,
including post-effective amendments, and all materials incorporated by reference
or deemed to be incorporated by reference, if any, in such prospectus.
Purchase Agreement: As defined in the second paragraph hereof.
Record Holder: (i) with respect to any Damages Payment Date relating to any
shares of Common Stock as to which any such Liquidated Damages have accrued, the
registered Holder of such shares 15 days prior to the next succeeding Damages
Payment Date; and (ii) with respect to any Damages Payment Date relating to any
Notes as to which any such Liquidated Damages has
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accrued, the registered Holder of such Notes 15 days prior to the next
succeeding Damages Payment Date.
Registration Default: As defined in Section 3(a) hereof.
Registration Statement: Any registration statement of the Company filed
with the SEC pursuant to the Securities Act that covers the resale of any of the
Transfer Restricted Securities pursuant to the provisions of this Agreement,
including the Prospectus, amendments and supplements to such registration
statement or Prospectus, including pre- and post-effective amendments, all
exhibits thereto, and all material incorporated by reference or deemed to be
incorporated by reference, if any, in such registration statement.
Requisite Information: As defined in Section 2(c) hereof.
Rule 144: Rule 144 promulgated by the SEC pursuant to the Securities Act,
as such Rule may be amended from time to time, or any successor rule or
regulation.
Rule 144A: Rule 144A promulgated by the SEC pursuant to the Securities Act,
as such Rule may be amended from time to time, or any successor rule or
regulation.
Rule 158: Rule 158 promulgated by the SEC pursuant to the Securities Act,
as such Rule may be amended from time to time, or any successor rule or
regulation.
Rule 415: Rule 415 promulgated by the SEC pursuant to the Securities Act,
as such Rule may be amended from time to time, or any successor rule or
regulation.
Rule 424: Rule 424 promulgated by the SEC pursuant to the Securities Act,
as such Rule may be amended from time to time, or any successor rule or
regulation.
Rule 430A: Rule 430A promulgated by the SEC pursuant to the Securities Act,
as such Rule may be amended from time to time, or any successor rule or
regulation.
SEC: The Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as amended, and the rules and
regulations promulgated by the SEC thereunder.
Shelf Registration Statement: As defined in Section 2(a) hereof.
TIA: The Trust Indenture Act of 1939, as amended, and the rules and
regulations promulgated by the SEC thereunder.
Transfer Restricted Securities: The Notes, the shares of Common Stock into
which such Notes are converted or convertible (including any shares of Common
Stock issued or issuable thereon upon any stock split, stock combination, stock
dividend or the like), upon original issuance thereof and at all times
subsequent thereto, and associated related rights, if any, until the earliest of
(i) the date on which the resale thereof has been effectively registered under
the Securities Act and disposed of in accordance with the Registration Statement
relating thereto,
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(ii) the date on which such security has been distributed to the public pursuant
to Rule 144 or is saleable pursuant to paragraph (k) of Rule 144 or (iii) the
date on which it ceases to be outstanding.
Transfer Agent: The registrar and transfer agent for the Company's Common
Stock.
Trustee: The trustee under the Indenture.
References herein to the term "Holders of a majority in interest of
Transfer Restricted Securities" or words to a similar effect shall mean, with
respect to any request, notice, demand, objection or other action by the Holders
hereunder or pursuant hereto (each, an "Act"), registered Holders of a number of
shares of then outstanding Common Stock constituting Transfer Restricted
Securities and an aggregate amount of then outstanding Notes constituting
Transfer Restricted Securities, such that the sum of such shares of Common Stock
and the shares of Common Stock issuable upon conversion of such Notes
constitutes in excess of 50% of the sum of all of the then outstanding shares of
Common Stock constituting Transfer Restricted Securities and the number of
shares of Common Stock issuable upon conversion of then outstanding Notes
constituting Transfer Restricted Securities. For purposes of the preceding
sentence, Transfer Restricted Securities owned, directly or indirectly, by the
Company or its Affiliates shall be deemed not to be outstanding.
SECTION 2. Shelf Registration Statement.
(a) The Company agrees to file with the SEC as soon as reasonably
practicable after the Closing Date, but in no event later than the Filing Date,
a Registration Statement for an offering to be made on a continuous basis
pursuant to Rule 415 covering all of the Transfer Restricted Securities or
separate Registration Statements for an offering to be made on a continuous
basis pursuant to Rule 415 covering all of the Common Stock and Notes
constituting Transfer Restricted Securities, respectively (such Registration
Statement or Statements, collectively, the "Shelf Registration Statement"). Each
Shelf Registration Statement shall be on Form S-3 under the Securities Act or
another appropriate form selected by the Company permitting registration of such
Transfer Restricted Securities for resale by the Holders in the manner or
manners reasonably designated by Holders of a majority in interest of Transfer
Restricted Securities being sold. The Company shall not permit any securities
other than the Transfer Restricted Securities to be included in any Shelf
Registration Statement. The Company shall use all reasonable efforts to cause
each Shelf Registration Statement to be declared effective pursuant to the
Securities Act as soon as reasonably practicable following the filing thereof
and to keep each Shelf Registration Statement continuously effective under the
Securities Act for two years after the date on which all of the Notes are sold
by the Company (including those sold pursuant to the option granted to the
Initial Purchasers in the Purchase Agreement) to the Initial Purchasers (the
"Effectiveness Period"), or such shorter period ending when there cease to be
any Transfer Restricted Securities outstanding.
(b) Supplements and Amendments. The Company shall use all reasonable
efforts to keep each Shelf Registration Statement continuously effective by
supplementing and amending the Shelf Registration Statement if required by the
rules, regulations or instructions applicable to the registration form used for
such Shelf Registration Statement, if required by the Securities Act
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or if reasonably requested by the Holders of a majority in interest of the
Transfer Restricted Securities or by any underwriter of such Transfer Restricted
Securities.
(c) Selling Securityholder Information. Each Holder wishing to sell
Transfer Restricted Securities pursuant to a Shelf Registration Statement and
related Prospectus agrees to deliver a Notice and Questionnaire that confirms
such Holder's agreement to be bound by the terms of this Agreement and includes
such information regarding it and the distribution of its Transfer Restricted
Securities as is required by law to be disclosed by the Holder in the applicable
Registration Statement (the "Requisite Information") to the Company prior to any
intended distribution of Transfer Restricted Securities under the Shelf
Registration Statement. The Company shall not be required to include in any
Shelf Registration Statement and related Prospectus the Transfer Restricted
Securities of any Holder that does not provide the Company with a Notice and
Questionnaire in accordance with this Section 2(c). The Company shall file,
within five Business Days after the receipt of a Notice and Questionnaire from
any Holder which includes the Requisite Information with respect to such Holder,
a Prospectus supplement pursuant to Rule 424 or otherwise amend or supplement
such Registration Statement to include in the Prospectus the Requisite
Information as to such Holder (and the Transfer Restricted Securities held by
such Holder), and the Company shall provide such Holder within five Business
Days after receipt of such Notice and Questionnaire with a copy of such
Prospectus as so amended or supplemented containing the Requisite Information in
order to permit such Holder to comply with the Prospectus delivery requirements
of the Securities Act in a timely manner with respect to any proposed
disposition of such Holder's Transfer Restricted Securities and to file the same
with the SEC. Each Holder shall promptly notify the Company of any material
changes to the Requisite Information contained in the Notice and Questionnaire
provided to the Company by such Holder. If the Company shall fail to file the
appropriate supplement or amendment within five Business Days of receipt of such
notice, the Company shall pay the Holder Liquidated Damages in the manner set
forth in Section 3. Furthermore, if the filing requires a post-effective
amendment to the Registration Statement and such amendment is not declared
effective within 45 Business Days of the filing of the post-effective amendment,
the Company shall pay the Holder Liquidated Damages in the manner set forth in
Section 3.
If any such Registration Statement refers to any Holder by name or
otherwise as the holder of any securities of the Company, then such Holder shall
have the right to require, in the event that such reference to such Holder by
name or otherwise is not required by the Securities Act or any similar Federal
statute then in force, the deletion of the reference to such Holder in such
Registration Statement at any time subsequent to the time that such reference
ceases to be required.
(d) Material Events; Suspension of Sales. Notwithstanding the provisions
contained in this Section 2, in the event that, in the judgment of the Company's
Board of Directors, it is advisable to suspend use of the Prospectus due to
pending corporate developments, public filings with the SEC or similar events,
the Company shall promptly deliver a written certificate to each registered
Holder, the Trustee, the Transfer Agent and the managing underwriters, if any,
to the effect that the use of the Prospectus is to be suspended until the
Company shall deliver a written notice that the use of the Prospectus may be
resumed. Thereafter, the use of the Prospectus shall be suspended, and the
Company shall not be required to maintain the effectiveness of, or amend
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or update the Shelf Registration Statement, or amend or supplement the
Prospectus; provided, however, that the Company shall only be permitted to
suspend the use of the Prospectus for a period not to exceed 30 days in any six-
month period or two periods not to exceed an aggregate of 60 days in any 12-
month period. The Company will use its best efforts to ensure that the use of
the Prospectus may be resumed as soon as, in the judgment of the Company's Board
of Directors, disclosure of the material relating to such pending development,
filing or event would not have a material adverse effect on the Company.
(e) Additional Agreements of Holders. Each Holder agrees not to dispose of
Transfer Restricted Securities pursuant to the Shelf Registration Statement
without complying with the prospectus delivery requirements under the Act and
the provisions of paragraph (d) above regarding use of the Prospectus. Each
Holder further agrees that it will comply fully with applicable federal and
state securities laws in connection with the distribution of any Transfer
Restricted Securities pursuant to the Shelf Registration Statement. Each Holder
further acknowledges having been advised by the Company that applicable federal
securities laws prohibit Holders from trading in securities of the Company at
any time while in possession of material non-public information about the
Company.
SECTION 3. Liquidated Damages.
The Company and the Initial Purchasers agree that the Holders will suffer
damages if the Company fails to fulfill its obligations pursuant to Section 2
hereof and that it would not be possible to ascertain the extent of such
damages. Accordingly, the Company hereby agrees to pay liquidated damages
("Liquidated Damages") to each Holder under the circumstances and to the extent
set forth below:
(i) if the Shelf Registration Statement has not been filed with the
SEC on or prior to the Filing Date; or
(ii) if each Shelf Registration Statement is not declared effective
by the SEC on or prior to the applicable Effectiveness Target Date; or
(iii) any Shelf Registration Statement ceases to be effective or
usable at any time during the Effectiveness Period (without being succeeded on
the same day immediately by a post-effective amendment or supplement to such
Registration Statement that cures such failure and that is itself, in the case
of post-effective amendment, immediately declared effective) for a period of
time which shall exceed 90 days in the aggregate in any period of 365
consecutive days (any of the foregoing, a "Registration Default").
In the event of a Registration Default, the Company will pay Liquidated
Damages to each holder of Transfer Restricted Securities, during the first 90-
day period immediately following the occurrence of such Registration Default in
an amount equal to $0.05 per week per $1,000 principal amount of Notes adjusted
to an equivalent per share basis in accordance with the conversion price. The
rate of accrual of the Liquidated Damages will increase by $0.05 per week per
$1,000 principal amount of Notes or Common Stock constituting Transfer
Restricted Securities (adjusted to an equivalent per share basis in accordance
with the conversion price for
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Common Stock constituting Transfer Restricted Securities) for each subsequent
90-day period until the applicable Registration Statement is filed, the
applicable Registration Statement is declared effective and becomes available
for effecting sales of securities, or the Shelf Registration Statement again
becomes effective and becomes available for effecting sales of securities, as
the case may be, up to a maximum amount of Liquidated Damages of $0.25 per week
per $1,000 principal amount of Notes adjusted to an equivalent per share basis
in accordance with the conversion price. Following the cure of a Registration
Default, Liquidated Damages will cease to accrue with respect to such
Registration Default (without in any way limiting the effect of any subsequent
Registration Default). All accrued Liquidated Damages shall be paid to the
holders of (i) Notes constituting Transfer Restricted Securities, pursuant to
the terms of the Indenture with respect to the payment of interest; and (ii)
shares of Common Stock, in the manner as interest payments on the Notes on
semiannual payment dates that correspond to interest payment dates for the
Notes. The parties hereto agree and acknowledge that the payment of Liquidated
Damages to holders of Common Stock upon a Registration Default pursuant to this
Agreement shall not be a dividend on such shares of Common Stock.
(b) The Company shall notify the Transfer Agent or the Trustee, as the
case may be, within one Business Day after each and every date on which a
Registration Default occurs. Liquidated Damages shall be paid by the Company to
the Record Holders of Common Stock on each Damages Payment Date by wire transfer
of immediately available funds to the accounts specified by them or by mailing
checks to their registered addresses as they appear in the register of the
Company for the Common Stock, if no such accounts have been specified in the
Notice and Questionnaire on or before the Damages Payment Date; and Liquidated
Damages shall be paid by the Company to the Record Holders of the Notes on each
semiannual interest payment date together with interest to be paid on the Notes
pursuant to the terms of the Indenture, by wire transfer of immediately
available funds to the accounts specified by them or by mailing checks to their
registered addresses as they appear in the Notes Register (as defined in the
Indenture) if no such accounts have been specified in the Notice and
Questionnaire on or before the Damages Payment Date; provided, however, that any
Liquidated Damages accrued with respect to any Notes or portion thereof called
for redemption on a redemption date, repurchased on a repurchase date, or
converted into shares of Common Stock on a conversion date prior to the Damages
Payment Date shall, in any such event, be paid instead to the Holder who
submitted such Notes or portion thereof for redemption, repurchase or conversion
on the applicable redemption date, repurchase date or conversion date, as the
case may be, on such date.
SECTION 4. Registration Procedures. In connection with the Company's
registration obligations hereunder, the Company shall effect such registrations
on the appropriate form selected by the Company to permit the resale of Transfer
Restricted Securities in accordance with the intended method or methods of
disposition thereof, and pursuant thereto the Company shall as expeditiously as
reasonably possible:
(a) No fewer than five Business Days prior to the initial filing of a
Registration Statement or Prospectus and no fewer than two Business Days prior
to the filing of any amendment or supplement thereto (excluding, unless
requested, any document that would be incorporated or deemed to be incorporated
therein by reference and then only to the Holder who so requested), furnish to
the Holders and the managing underwriters, if any, copies of all such documents
proposed to be filed (excluding, unless requested, those incorporated or deemed
to be
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incorporated by reference and then only to the Holder who so requested) and
cause the officers and directors of the Company, counsel to the Company and
independent certified public accountants to the Company to respond to such
inquiries as shall be necessary in connection with such Registration Statement,
in the opinion of counsel to such underwriters, to conduct a reasonable
investigation within the meaning of the Securities Act. The Company shall not
file any such Registration Statement or related Prospectus or any amendments or
supplements thereto (excluding any document that would be incorporated or deemed
incorporated by reference) to which the Holders of a majority in interest of the
Transfer Restricted Securities or the managing underwriters, if any, shall
reasonably object on a timely basis;
(b) Prepare and file with the SEC such amendments, including post-
effective amendments, to each Registration Statement as may be necessary to keep
such Registration Statement continuously effective for the applicable time
period set forth in Section 2(a) hereof; cause the related Prospectus to be
supplemented by any required Prospectus supplement, and as so supplemented to be
filed pursuant to Rule 424 under the Securities Act and the Exchange Act with
respect to the disposition of all securities covered by such Registration
Statement during such period in accordance with the intended method or methods
of disposition by the Holder set forth in such Registration Statement as so
amended or in such Prospectus as so supplemented (including, without limitation,
the filing of any Prospectus supplement pursuant to Rule 424 in order to add or
change any selling security holder information (including any such supplements
or amendments pursuant to Section 2(c) hereof, provided such Holder to which
such change applies complies with the Requisite Information requirements of
Section 2(c) hereof));
(c) Notify the Holders and the managing underwriters, if any, promptly
(and in the case of an event specified by clause (i)(A) of this paragraph in no
event fewer than two Business Days prior to such filing), and (if requested by
any such person), confirm such notice in writing, (i) (A) when a Prospectus or
any Prospectus supplement or post-effective amendment is proposed to be filed,
and, (B) with respect to a Registration Statement or any post-effective
amendment, when the same has become effective; (ii) of any request of the SEC or
any other Federal or state governmental authority for amendments or supplements
to such Registration Statement or related Prospectus or for additional
information related thereto; (iii) of the issuance by the SEC, any state
securities commission, any other governmental agency or any court of any stop
order, order or injunction suspending or enjoining the use or the effectiveness
of the Registration Statement or the initiation of any proceedings for that
purpose; (iv) if at any time any of the representations and warranties of the
Company contained in any agreement (including any underwriting agreement)
contemplated by Section 4(m) hereof are not true and correct in all material
respects; (v) 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 Transfer Restricted Securities for sale in any jurisdiction, or the
initiation or threatening of any proceeding for such purpose; and (vi) of the
existence of any fact and the happening of any event that makes any statement
made in such Registration Statement or related Prospectus untrue in any material
respect, or that requires the making of any changes in such Registration
Statement or Prospectus so that in the case of the Registration Statement, it
will 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 that, in the case of the Prospectus, such Prospectus
will not contain any untrue statement of a material fact or omit to state any
material fact required to
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be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
(d) Use all reasonable efforts to avoid the issuance of, or, if issued, to
obtain the withdrawal of any stop order or order enjoining or suspending the use
or effectiveness of a Registration Statement or the lifting of any suspension of
the qualification (or exemption from qualification) of any of the Transfer
Restricted Securities for sale in any jurisdiction, at the earliest practicable
moment;
(e) If requested by the managing underwriters, if any, or the Holders of a
majority in interest of the Transfer Restricted Securities being sold in
connection with such offering, (i) promptly include in a Prospectus supplement
or post-effective amendment such information as the managing underwriters, if
any, and such Holders agree should, in their reasonable judgment, be included
therein; and (ii) make all required filings of such Prospectus supplement or
such post-effective amendment as soon as reasonably practicable after the
Company has received notification of the matters to be included in such
Prospectus supplement or post-effective amendment, provided, however, that the
Company shall not be required to take any action pursuant to this Section 4(e)
that, in the opinion of counsel for the Company, would violate applicable law;
(f) Furnish to each Holder who so requests and each managing underwriter,
if any, without charge, at least one conformed copy of each Registration
Statement and each 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 by such
Holder or any managing underwriter);
(g) Deliver to each Holder and the underwriters, if any, without charge,
as many copies of the Prospectus or Prospectuses (including each form of
Prospectus) and each amendment or supplement thereto as such persons may
reasonably request; and, unless the Company shall have given notice to such
Holder pursuant to Section 2(d), the Company hereby consents to the use of such
Prospectus and each amendment or supplement thereto by each of the selling
Holders of Transfer Restricted Securities and the underwriters, if any, in
connection with the offering and sale of the Transfer Restricted Securities
covered by such Prospectus and any amendment or supplement thereto, provided,
however, that no Holder shall be entitled to use the Prospectus unless and until
such Holder shall have furnished to the Company any and all Requisite
Information pursuant to Section 2(c) hereof;
(h) Use all reasonable efforts to register or qualify, or cooperate with
the Holders of Transfer Restricted Securities to be sold or tendered for, the
underwriters, if any, and their respective counsel in connection with the
registration or qualification (or exemption from such registration or
qualification) of, such Transfer Restricted Securities for offer and sale under
the securities or Blue Sky laws of such jurisdictions within the United States
as any Holder or underwriter reasonably requests in writing, keep each such
registration or qualification (or exemption therefrom) effective during the
period such Registration Statement is required to be kept effective and do any
and all other acts or things necessary legally to enable the disposition in such
jurisdictions of the Transfer Restricted Securities covered by the applicable
Registration Statement; provided, however, that the Company shall not be
required to qualify generally to do
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business in any jurisdiction where it is not then so qualified, take any action
that would subject it to general service of process in any such jurisdiction
where it is not then so subject or subject the Company to any tax in any such
jurisdiction where it is not then so subject;
(i) In connection with any sale or transfer of Transfer Restricted
Securities that will result in such securities no longer being Transfer
Restricted Securities, cooperate with the Holders and the managing underwriters,
if any, to (i) facilitate the timely preparation and delivery of certificates
representing Transfer Restricted Securities to be sold, which certificates shall
not bear any restrictive legends, shall bear a CUSIP number different from the
CUSIP number for the Transfer Restricted Securities and shall be in a form
eligible for deposit with The Depository Trust Company; and (ii) enable such
Transfer Restricted Securities to be in such denominations and registered in
such names as the managing underwriters, if any, or Holders may reasonably
request at least two Business Days prior to any sale of Transfer Restricted
Securities;
(j) Use all reasonable efforts to cause the offering of the Transfer
Restricted Securities covered by the Registration Statement to be registered
with or approved by such other governmental agencies or authorities within the
United States, except as may be required as a consequence of the nature of a
Holder's business, in which case the Company will cooperate in all reasonable
respects and at such Holder's expense with the filing of such Registration
Statement and the granting of such approvals as may be reasonably necessary to
enable the seller or sellers thereof or the underwriters, if any, to consummate
the disposition of such Transfer Restricted Securities; provided, however, that
the Company shall not be required to register the Transfer Restricted Securities
in any jurisdiction that would require the Company to qualify to do business in
any jurisdiction where it is not then so qualified, subject it to general
service of process in any such jurisdiction where it is not then so subject or
subject the Company to any tax in any such jurisdiction where it is not then so
subject or to;
(k) Upon the occurrence of any event contemplated by Section 4(c)(vi)
hereof, as promptly as reasonably practicable (subject to any suspension of
sales pursuant to Section 2(d) hereof), prepare a supplement or amendment,
including, if appropriate, a post-effective amendment, to each Registration
Statement or a supplement to the related Prospectus or any document incorporated
or deemed to be incorporated therein by reference, and file any other required
document so that, as thereafter delivered, such Prospectus will not 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, in light of the
circumstances under which they were made, not misleading;
(l) Prior to the effective date of the first Registration Statement
relating to the Transfer Restricted Securities, to provide a CUSIP number for
the Transfer Restricted Securities to be sold pursuant to the Registration
Statement;
(m) Enter into such agreements (including any underwriting agreements in
form, scope and substance as are customary in underwritten offerings) reasonably
satisfactory to the Company and take all such other reasonable actions in
connection therewith (including those reasonably requested by the managing
underwriters, if any, or the Holders of a majority in interest of the Transfer
Restricted Securities being sold) in order to expedite or facilitate the sale
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of such Transfer Restricted Securities; provided, however, that the Company is
not required to facilitate an underwritten offering without its consent. In
connection with any underwritten offering, the Company will (i) make such
representations and warranties to the Holders of such Transfer Restricted
Securities and the underwriters, if any, with respect to the business of the
Company and its subsidiaries (including with respect to businesses or assets
acquired or to be acquired by any of them), and the Registration Statement,
Prospectus and documents, if any, incorporated or deemed to be incorporated by
reference therein, in each case, in form, substance and scope as are customarily
made by issuers to underwriters in underwritten offerings and reasonably
acceptable to the Company, and confirm the same if and when requested; (ii) seek
to obtain opinions of counsel to the Company and updates thereof (which counsel
and opinions (in form, scope and substance) shall be reasonably satisfactory to
the managing underwriters, if any, addressed to each selling Holder of Transfer
Restricted Securities and each of the underwriters, if any, covering the matters
customarily covered in opinions requested in underwritten offerings (including
any such matters as may be reasonably requested by such underwriters));
(iii) use all reasonable efforts to obtain customary "cold comfort" letters and
updates thereof from the independent certified public accountants of the Company
(and, if necessary, any other independent certified public accountants of any
subsidiary of the Company or of any business acquired by the Company for which
financial statements and financial data are, or are required to be, included in
the Registration Statement), addressed (where reasonably possible) to each
selling Holder of Transfer Restricted Securities and each of the underwriters,
if any, such letters to be in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with underwritten
offerings; (iv) if an underwriting agreement is entered into, the same shall
contain indemnification provisions and procedures no less favorable to the
selling Holders of Transfer Restricted Securities and the underwriters, if any,
than those set forth in Section 6 hereof (or such other provisions and
procedures acceptable to Holders of a majority in interest of the Transfer
Restricted Securities covered by such Registration Statement and the managing
underwriters); and (v) deliver such documents and certificates as may be
reasonably requested by the Holders of majority interest of the Transfer
Restricted Securities being sold or the managing underwriters, if any, to
evidence the continued validity of the representations and warranties made
pursuant to clause (i) of this Section 4(m) and to evidence compliance with any
customary conditions contained in the underwriting agreement or other agreement
entered into by the Company;
(n) Make available for inspection by a representative of the Holders of
Transfer Restricted Securities being sold, any underwriter participating in any
such disposition of Transfer Restricted Securities, if any, and any attorney,
consultant or accountant retained by such selling Holders or underwriter, at the
offices where normally kept, during reasonable business hours, all financial and
other records, pertinent corporate documents and properties of the Company and
its subsidiaries as they may reasonably request, and cause the officers,
directors, agents and employees of the Company and its subsidiaries to supply
all information in each case reasonably requested by any such representative,
underwriter, attorney, consultant or accountant in connection with 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 or inspection (as the case may be) 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
-11-
<PAGE>
(including any disclosure requirements pursuant to Federal securities laws in
connection with the filing of any Registration Statement or the use of any
Prospectus); (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;
(o) Use all reasonable efforts to cause the Indenture to be qualified
under the TIA not later than the effective date of the first Registration
Statement relating to the Transfer Restricted Securities; and in connection
therewith, cooperate with the Trustee and the Holders of Notes or Common Stock
constituting Transfer Restricted Securities to effect such changes to the
Indenture, if any, as may be required for such Indenture to be so qualified in
accordance with the terms of the TIA; and execute, and use all reasonable
efforts to cause the Trustee to execute, all customary documents as may be
required to effect such changes, and all other forms and documents (including
Form T-1) required to be filed with the SEC to enable the Indenture to be so
qualified under the TIA in a timely manner;
(p) Comply with applicable rules and regulations of the SEC and make
generally available to its security holders earning statements satisfying the
provisions of Section 11(a) of the Securities Act or Rule 158 (or any similar
rule promulgated under the Securities Act), no later than 45 days after the end
of any 12-month period (or 90 days after the end of any 12-month period if such
period is a fiscal year) (i) commencing at the end of any fiscal quarter in
which Transfer Restricted Securities are sold to underwriters in a firm
commitment or best efforts underwritten offering; and (ii) if not sold to
underwriters in such an offering, commencing on the first day of the first
fiscal quarter after the effective date of a Registration Statement, which
statement shall cover said period, consistent with the requirements of Rule 158;
and
(q) (i) list all shares of Common Stock covered by any Registration
Statements on any securities exchange on which the Common Stock is then listed;
or (ii) authorize for quotation on the SmallCap Market or the National Market of
the National Association of Securities Dealers Automated Quotation System
("Nasdaq") all Common Stock covered by all such Registration Statements if the
Common Stock is then so authorized for quotation.
SECTION 5. Registration Expenses.
All fees and expenses incident to the performance of or compliance with
this Agreement by the Company shall be borne by it whether or not any
Registration Statement is filed or becomes effective and whether or not any
securities are offered or sold pursuant to any Registration Statement. The fees
and expenses referred to in the foregoing sentence shall include, without
limitation, (i) all registration and filings fees (including, without
limitation, fees and expenses (A) with respect to filings required to be made
with the National Association of Securities Dealers, Inc. and (B) in compliance
with securities or Blue Sky laws (including, without limitation and in addition
to that provided for in this Section 5, fees and disbursements of counsel for
the underwriters in connection with Blue Sky qualifications of the Transfer
Restricted Securities and determination of the eligibility of the Transfer
Restricted Securities for investment under the laws of such jurisdictions as the
managing underwriters, if any, or Holders of a majority in interest of Transfer
Restricted Securities, may designate)); (ii) printing expenses (including,
without limitation, of printing Prospectuses if the printing of Prospectuses is
required
-12-
<PAGE>
by the managing underwriters, if any, or by the Holders of a majority in
interest of the Transfer Restricted Securities included); (iii) messenger,
telephone and delivery expenses; (iv) reasonable fees and disbursements of
counsel for the Company (plus any local counsel deemed appropriate by the
Holders of a majority in interest of the Transfer Restricted Securities) in
accordance with the provisions of Section 5 hereof; (v) fees and disbursements
of all independent certified public accountants referred to in Section 4(m)(iii)
(including, without limitation, the expenses of any special audit and "comfort"
letters required by or incident to such performance); (vi) fees and expenses of
all other persons retained by the Company. In addition, the Company shall pay
its internal expenses (including, without limitation, all salaries and expenses
of its officers and employees performing legal or accounting duties), the
expense of an annual audit and the fees and expenses incurred in connection with
the listing of the securities to be registered on any securities exchange or the
Nasdaq SmallCap Market or the Nasdaq National Market. Notwithstanding anything
in this Agreement to the contrary, each Holder shall pay all underwriting
discounts and brokerage commissions with respect to any Transfer Restricted
Securities sold by it.
SECTION 6. Indemnification.
(a) The Company agrees to indemnify and hold harmless (i) each of the
Initial Purchasers; (ii) each Holder; (iii) each person, if any, who controls
(within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act) any of the foregoing (any of the persons referred to in this
clause (iii) being hereinafter referred to as a "controlling person"); and (iv)
the respective officers, directors, partners, employees, representatives and
agents of the Initial Purchasers, the Holders (including predecessor Holders),
or any controlling person (any person referred to in clause (i), (ii), (iii) or
(iv) may hereinafter be referred to as an "Indemnified Person"), from and
against any and all losses, claims, damages, liabilities, expenses and judgments
caused by 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 caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein (in the case of any
Prospectus or supplement thereto, in light of the circumstances under which they
were made) not misleading, except insofar as such losses, claims, damages,
liabilities, expenses or judgments are caused by any such untrue statement or
omission or alleged untrue statement or omission based upon information relating
to any Indemnified Person furnished to the Company by or on behalf of such
Indemnified Person expressly for use therein (which shall include, without
limitation, the Requisite Information in the Notice and Questionnaire provided
to the Company by such Indemnified Person); provided, however, that the
foregoing indemnity with respect to any preliminary Prospectus shall not inure
to the benefit of any Indemnified Person from whom the person asserting such
losses, claims, damages, liabilities, expenses and judgments purchased
securities if such untrue statement or omission or alleged untrue statement or
omission made in such preliminary Prospectus is eliminated or remedied in the
Prospectus and a copy of the Prospectus shall not have been furnished to such
person in a timely manner due to the wrongful action or wrongful inaction of
such Indemnified Person, whether as a result of negligence or otherwise.
(b) In case any action shall be brought against any Indemnified Person,
based upon any Registration Statement or any such Prospectus or any amendment or
supplement thereto and
-13-
<PAGE>
with respect to which indemnity may be sought against the Company, such
Indemnified Person shall promptly notify the Company in writing and the Company
shall assume the defense thereof, including the employment of counsel reasonably
satisfactory to such Indemnified Person and payment of all fees and expenses.
Any Indemnified Person shall have the right to employ separate counsel in any
such action and participate in the defense thereof, but the fees and expenses of
such counsel shall be at the expense of such Indemnified Person, unless (i) the
employment of such counsel shall have been specifically authorized in writing by
the Company; (ii) the Company shall have failed to assume the defense and employ
counsel; or (iii) such Indemnified Person or Persons shall have been advised by
counsel that there may be a conflict between the positions of the indemnifying
party or parties and of the indemnified party or parties in conducting the
defense of such action or proceeding or that there may be legal defenses
available to such Indemnified Person or Persons different from or in addition to
those available to the indemnifying party or parties (in which case the Company
shall not have the right to assume the defense of such action on behalf of such
Indemnified Person, it being understood, however, that the Company 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 fees and expenses of more than
one separate firm of attorneys (in addition to any local counsel) for all such
Indemnified Persons, which firm shall be designated in writing by such
Indemnified Persons, and that all such fees and expenses shall be reimbursed as
they are incurred). The Company shall not be liable for any settlement of any
such action effected without its written consent but if settled with the written
consent of the Company, the Company agrees to indemnify and hold harmless any
Indemnified Person from and against any loss or liability by reason of such
settlement. 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.
(c) In connection with any Registration Statement pursuant to which any
Holder (or predecessor Holder) sold or offered for resale Transfer Restricted
Securities, such Holder agrees, severally and not jointly, to indemnify and hold
harmless the Company, its directors, officers, employees, representatives and
agents and any person controlling the Company within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act, to the same extent as
the foregoing indemnity from the Company to each Indemnified Person but only
with reference to information relating to such Indemnified Person furnished by
or on behalf of such Indemnified Person expressly for use in such Registration
Statement (which shall include, without limitation, the Requisite Information in
the Notice and Questionnaire provided to the Company by such Indemnified
Person). In case any action shall be brought against the Company, any of its
directors, officers, employees, representatives and agents, or any person
controlling the Company based on such Registration Statement and in respect of
which indemnity may be sought against any Indemnified Person, the Indemnified
Person shall have the rights and duties given to the Company (except that if the
Company shall have assumed the defense thereof, such Indemnified Person shall
not be required to do so, but may employ separate counsel therein and
participate in defense thereof but the fees and expenses of such counsel shall
be at the expense of such Indemnified Person), and the Company, its directors,
officers,
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<PAGE>
employees, representatives and agents, and any person controlling the Company
shall have the rights and duties given to the Indemnified Person by Section 6(b)
hereof.
(d) If the indemnification provided for in this Section 6 is applicable by
its terms but unavailable to an indemnified party in respect of any losses,
claims, damages, liabilities, expenses or judgments referred to therein, then
each 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, claims, damages, liabilities, expenses and judgments (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and each Indemnified Person on the other hand pursuant
to the Purchase Agreement or from the offering for resale of the Transfer
Restricted Securities or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company and each such Indemnified Person in connection
with the statements or omissions which resulted in such losses, claims, damages,
liabilities, expenses or judgments, as well as any other relevant equitable
considerations. The relative fault of the Company and each such Indemnified
Person shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission to state a
material fact relates to information supplied by the Company or such Indemnified
Person and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company, the Holders and the Initial Purchasers agree that it would not
be just and equitable if contribution pursuant to this Section 6(d) were
determined by pro rata allocation (even if the Indemnified Person were treated
as one entity for such purpose) or by any other method of allocation which does
not take account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities, expenses or judgments
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 the provisions of this
Section 6, no Indemnified Person shall be required to contribute any amount in
excess of the amount by which the total net profit received by it in connection
with the sale of the Transfer Restricted Securities pursuant to this Agreement
exceeds the amount of any damages which such Indemnified Person has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Indemnified Persons' obligations to contribute pursuant
to this Section 6(d) are several in proportion to the respective amount of
Transfer Restricted Securities included in and sold pursuant to any such
Registration Statement by each Indemnified Person and not joint.
SECTION 7. Underwritten Registration.
If any of the Transfer Restricted Securities covered by any Shelf
Registration Statement are to be sold in an underwritten offering, the
investment banker or investment bankers and manager or managers that will
administer the offering will be investment bankers of recognized
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<PAGE>
national standing selected by the Holders of a majority in interest of such
Transfer Restricted Securities included in such offering, subject to the consent
of the Company (which will not be unreasonably withheld or delayed).
No person may participate in any underwritten registration hereunder unless
such person (i) agrees to sell such person's Transfer Restricted Securities on
the basis reasonably provided in any underwriting arrangements approved by the
persons entitled hereunder to approve such arrangements; and (ii) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements, lock-up agreements and other documents reasonably required under the
terms of such underwriting arrangements.
SECTION 8. Miscellaneous.
(a) Remedies. In the event of a breach by the Company or by a Holder of
any of their respective obligations under this Agreement, each Holder or the
Company, in addition to being entitled to exercise all rights granted by law,
including, without limitation, recovery of damages, will be entitled to specific
performance of its rights under this Agreement. The Company and each Holder
agree that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of any of the provisions of this Agreement
and hereby further agree that, in the event of any action for specific
performance in respect of such breach, they shall waive the defense that a
remedy at law would be adequate. This Section 8(a) shall not apply to any breach
for which Liquidated Damages have been specifically provided hereunder.
(b) No Inconsistent Agreements. The Company shall not 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 Company is not currently a party to any agreement
granting any registration rights with respect to any of its securities to any
person which conflicts with the Company's obligations hereunder or gives any
other party the right to include any securities in any Registration Statement
filed pursuant hereto, except for such rights and conflicts as have been
irrevocably waived.
(c) No Adverse Action Affecting the Transfer Restricted Securities. The
Company will not take any action with respect to the Transfer Restricted
Securities which would adversely affect the ability of any of the Holders to
include such Transfer Restricted Securities in a registration undertaken
pursuant to this Agreement.
(d) No Piggyback on Registrations. After the date hereof, the Company
shall not grant to any of its security holders (other than the Holders in such
capacity) the right to include any of its securities in any Shelf Registration
Statement.
(e) 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, without the written consent of the Holders of a majority in interest of
the Transfer Restricted Securities, provided, however, that, for the purposes of
this Agreement, Transfer Restricted Securities that are owned, directly or
indirectly, by either the Company or an Affiliate of the Company are not deemed
outstanding. Notwithstanding the foregoing, a waiver or consent to depart from
the provisions hereof with
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<PAGE>
respect to a matter that relates exclusively to the rights of Holders whose
Transfer Restricted Securities are being sold pursuant to an underwritten
offering and that does not directly or indirectly affect the rights of other
Holders may be given by Holders of a majority in interest of the Transfer
Restricted Securities being sold by such Holders pursuant to such an
underwritten offering, provided, however, that the provisions of this sentence
may not be amended, modified, or supplemented except in accordance with the
provisions of the immediately preceding sentence.
(f) Notices. All notices and other communications provided for herein
shall be made in writing by hand-delivery, next day air courier, certified
first-class mail, return receipt requested or telecopy:
(i) if to a Holder, to the address of such Holder as it appears in
the Notice and Questionnaire, or, if not so specified, in the Common Stock
or Notes register of the Company, as applicable;
<TABLE>
<S> <C>
(ii) if to the Company, to: with a copy to:
TranSwitch Corporation Testa, Hurwitz & Thibeault, LLP
3 Enterprise Drive 125 High Street
Shelton, Connecticut 06484 Boston, Massachusetts 02110
Attn.: Dr. Santanu Das Attn: Timothy C. Maguire, Esq.
Telecopy No.: (203) 926-9453 Telecopy No.: (617) 248-7100
</TABLE>
Except as otherwise provided in this Agreement, all such communications
shall be deemed to have been duly given, when delivered by hand, if personally
delivered; one Business Day after being timely delivered to a next-day air
courier, upon receipt by the Company after being deposited in the mail, postage
prepaid, if mailed; and when receipt is acknowledged by the recipient's
telecopier machine, if telecopied.
(g) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and permitted assigns of each of the parties
and shall inure to the benefit of each existing and future Holder. The Company
may not assign its rights or obligations hereunder without the prior written
consent of the Holders of a majority in interest of the Transfer Restricted
Securities, other than by operation of law pursuant to a merger or consolidation
to which the Company is a party.
(h) Counterparts. This Agreement may be executed in any number of
counterparts by the parties hereto, 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 instrument.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WITHIN THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW.
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<PAGE>
(j) Severability. The remedies provided herein are cumulative and not
exclusive of any remedies provided by law. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction 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, and the parties
hereto shall use their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that
may be hereafter declared invalid, illegal, void or unenforceable.
(k) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof. All
references made in this Agreement to "Section" and "paragraph" refer to such
Section or paragraph of this Agreement, unless expressly stated otherwise.
(l) Attorneys' Fees. In any action or proceeding brought to enforce any
provision of this Agreement, or where any provision hereof is validly asserted
as a defense, the prevailing party, as determined by the court, shall be
entitled to recover its reasonable attorneys' fees in addition to any other
available remedy.
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<PAGE>
IN WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be duly executed as of the date first written above.
TRANSWITCH CORPORATION
By: /s/ Michael C. McCoy
------------------------------
Name: Michael C. McCoy
Title: Vice President and
Secretary
The foregoing Registration Rights
Agreement is hereby confirmed and
agreed to as of the date first
written above:
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
ROBERTSON STEPHENS INC.
BANC OF AMERICA SECURITIES LLC
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Joseph Carey
----------------------------
Authorized Signatory
Acting on behalf of itself and the Initial Purchasers
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<PAGE>
Exhibit A
Notice
The undersigned beneficial owner (the "Selling Securityholder") of Transfer
Restricted Securities hereby gives notice to the Company of its intention to
sell or otherwise dispose of Transfer Restricted Securities beneficially owned
by it and listed below in Item (3), unless otherwise specified in Item (3),
pursuant to the Shelf Registration Statement. The undersigned, by signing and
returning this Notice and Questionnaire, understands and agrees that it will be
bound by the terms and conditions of this Notice and Questionnaire and the
Registration Rights Agreement.
Pursuant to the Registration Rights Agreement, the undersigned has agreed
to indemnify and hold harmless the Company, the Company's directors and the
Company's officers who sign the Shelf Registration Statement and each person, if
any, who controls the Company within the meaning of either Section 15 of the
Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), from and against certain losses arising in connection with
statements concerning the undersigned made in the Shelf Registration Statement
or the related prospectus in reliance upon the information provided in this
Notice and Questionnaire.
The undersigned hereby provides the following information to the Company
and represents and warrants that such information is accurate and complete:
Questionnaire
1. (a) Full Legal Name of Selling Securityholder:
----------------------------------------------------------------------
(b) Full Legal Name of Registered Holder (if not the same as (a)
above) through which Transfer Restricted Securities listed in
Item (3) below are held:
----------------------------------------------------------------------
(c) Full Legal Name of DTC Participant (if applicable and if not the
same as (b) above) through which Transfer Restricted Securities
listed in Item (3) below are held:
----------------------------------------------------------------------
2. Address for Notices to Selling Securityholder:
----------------------------------------------------------------------
Telephone:____________________________________________________________
Fax:__________________________________________________________________
Contact Person:_______________________________________________________
A-1
<PAGE>
3. Beneficial Ownership of Transfer Restricted Securities:
(a) Type and Amount of Transfer Restricted Securities beneficially owned:
---------------------------------------------------------------------------
(b) CUSIP No(s). of such Transfer Restricted Securities beneficially
owned:
---------------------------------------------------------------------------
(c) Type and Amount of Transfer Restricted Securities to be registered:
---------------------------------------------------------------------------
4. Beneficial Ownership of Other Securities of the Company owned by the
Selling Securityholder:
Except as set forth below in this Item (4), the undersigned is not the
beneficial or registered owner of any securities of the Company other than
the Transfer Restricted Securities listed above in Item (3).
(a) Type and Amount of Other Securities beneficially owned:
---------------------------------------------------------------------------
(b) CUSIP No(s). of such Other Securities beneficially owned:
---------------------------------------------------------------------------
5. Relationship with the Company:
Except as set forth below, neither the undersigned nor any of its
affiliates, officers, directors or principal equity holders (5% or more)
has held any position or office or has had any other material relationship
with the Company (or its predecessors or affiliates) during the past three
years.
State any exceptions here:
---------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
6. Plan of Distribution:
Except as set forth below, the undersigned (including its donees or
pledgees) intends to distribute the Transfer Restricted Securities listed
above in Item (3) pursuant to the Shelf Registration Statement only as
follows (if at all): Such Transfer Restricted Securities may be sold from
time to time directly by the undersigned or alternatively, through
underwriters, broker-dealers or agents. If the Transfer Restricted
Securities are sold through underwriters or broker-dealers, the Selling
Securityholder will be responsible for underwriting discounts and
commissions and/or agent's commissions. Such Transfer Restricted Securities
may be sold in one or more transactions at fixed
A-2
<PAGE>
prices, at prevailing market prices at the time of sale, at varying prices
determined at the time of sale, or at negotiated prices. Such sales may be
effected in transactions (which may involve cresses or block transactions)
(i) on any national securities exchange or quotation service on which the
Transfer Restricted Securities may be listed or quoted at the time of sale;
(ii) in the over-the-counter market; (iii) in transactions otherwise than
on such exchanges or services or in the over-the-counter market; or (iv)
through the writing of options. In connection with sales of the Transfer
Restricted Securities or otherwise, the undersigned may enter into hedging
transactions with broker-dealers, which may in turn engage in short sales
of the Transfer Restricted Securities in the course of hedging the
positions they assume. The Selling Securityholder may also sell Transfer
Restricted Securities short and deliver Transfer Restricted Securities to
close out such short positions, or loan or pledge Transfer Restricted
Securities to broker-dealers that in turn may sell such securities.
State any exceptions here:
---------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
Note: In no event will such method(s) of distribution take the form of an
underwritten offering of the Transfer Restricted Securities without the
prior agreement of the Company.
The undersigned acknowledges that it understands its obligation to comply
with the provisions of the Exchange Act and the rules thereunder relating to
stock manipulation, particularly Regulation M thereunder (or any successor rules
or regulations), in connection with any offering of Transfer Restricted
Securities pursuant to the Shelf Registration Statement. The undersigned agrees
that neither it nor any person acting on its behalf will engage in any
transaction in violation of such provisions.
The Selling Securityholder hereby acknowledges its obligations under the
Registration Rights Agreement to indemnify and hold harmless certain persons as
set forth therein. Pursuant to the Registration Rights Agreement, the Company
has agreed under certain circumstances to indemnify the Selling Securityholders
against certain liabilities.
In accordance with the undersigned's obligation under the Registration
Rights Agreement to provide such information as may be required by law for
inclusion in the Shelf Registration Statement, the undersigned agrees to
promptly notify the Company of any inaccuracies or changes in the information
provided herein that may occur subsequent to the date hereof at any time while
the Shelf Registration Statement remains effective. All notices hereunder and
pursuant to the Registration Rights Agreement shall be made in writing, by hand
delivery, first-class mail or air courier guaranteeing overnight delivery at the
address set forth below. In the absence of any such notification, the Company
shall be entitled to continue to rely on the accuracy of the information in this
Notice and Questionnaire.
By signing below, the undersigned consents to the disclosure of the
information contained herein in its answers to items (1) through (6) above and
inclusion of such information
A-3
<PAGE>
in the Shelf Registration Statement and the Prospectus. The undersigned
understands that such information will be relied upon by the Company in
connection with the preparation, amendment or supplementation of the Shelf
Registration Statement and the Prospectus.
The terms of this Notice and Questionnaire, and the representations and
warranties contained herein, shall be binding upon, shall inure to the benefit
of and shall be enforceable by the respective successors, heirs, personal
representatives, and assigns of the Company and the Selling Securityholder with
respect to the Transfer Restricted Securities beneficially owned by the Selling
Securityholder and listed in Item (3) above. This agreement shall be governed
by, and construed and enforced in accordance with, the laws of the State of New
York applicable to contracts made in the State of New York.
IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused
this Notice and Questionnaire to be executed and delivered either in person or
by its duly authorized agent.
Date:
------------------------------- -----------------------------------
Selling Securityholder (Print or
type full legal name of beneficial
owner of Transfer Restricted
Securities)
By:_______________________________
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE TO:
TranSwitch Corporation
3 Enterprise Drive
Shelton, Connecticut 06484
Attention: Corporate Secretary
with a copy to:
Testa, Hurwitz & Thibeault, LLP
125 High Street
Boston, Massachusetts 02110
Attention: Lori Blodorn, Esq.
A-4
