EXHIBIT 10.1


 


DUPONT PHOTOMASKS, INC.


 


REGISTRATION RIGHTS AGREEMENT AMONG DUPONT PHOTOMASKS, INC.,
CREDIT SUISSE FIRST BOSTON LLC AND LEHMAN BROTHERS INC. DATED AS OF MAY 5, 2003


 


 


$105,000,000


 


DUPONT PHOTOMASKS, INC.


 


1.25% Convertible Subordinated Notes due May 15, 2008


 


 


REGISTRATION RIGHTS AGREEMENT


 


May 5, 2003


 


 


CREDIT SUISSE FIRST
BOSTON LLC


LEHMAN
BROTHERS INC.


c/o Credit Suisse First
Boston LLC


Eleven Madison Avenue


New York, New York 10010-3629


 


Dear Sirs:


 


DuPont Photomasks, Inc.,
Delaware corporation (the “Company”), proposes to issue and sell to
Credit Suisse First Boston LLC and Lehman Brothers Inc. (collectively, the “Initial
Purchasers”), upon the terms set forth in a purchase agreement of
even date herewith (the “Purchase Agreement”), $105,000,000
aggregate principal amount (plus up to an additional $20,000,000 principal
amount) of its 1.25% Convertible
Subordinated Notes due May 15, 2008 (the “Initial Securities”).  The Initial Securities will be convertible
into shares of common stock, par value $.01 per share, of the Company (the “Common  Stock”) initially at the
conversion price set forth in the Offering Circular dated April 29, 2003.  The Initial Securities will be issued
pursuant to an Indenture, dated as of May 5, 2003 (the “Indenture”), among the
Company and JP Morgan Chase Bank, a New York banking corporation, as
trustee  (the “Trustee”).  As an inducement to the Initial Purchasers
to enter into the Purchase Agreement, the Company agrees with the Initial
Purchasers, for the benefit of (i) the Initial Purchasers and (ii) the holders
of the Initial Securities and the Common Stock issuable upon conversion of the
Initial Securities (collectively, the “Securities”) from time to time until such
time as such Securities have been sold pursuant to a Shelf Registration
Statement (as defined below) (each of the forgoing a “Holder” and collectively the
“Holders”),
as follows:


 


1.  Shelf Registration.  (a) 
The Company shall, at its cost, prepare and, as promptly as practicable
(but in no event more than 90 days after the latest date of original issuance
of the Initial Securities) file with the Securities and Exchange Commission
(the “Commission”)
and thereafter use its commercially reasonable efforts to cause to be declared
effective as soon as practicable a registration statement on Form S-3 (the “Shelf
Registration  Statement”) relating to the offer and sale
of the Transfer Restricted Securities (as defined in Section 5 hereof) by the
Holders thereof from time to time in accordance with the methods of


 

















 


distribution set forth in the Shelf Registration Statement and
Rule 415 under the Securities Act of 1933, as amended (the “Securities
Act”) (hereinafter, the “Shelf Registration”); provided, however,
that no Holder (other than an Initial Purchaser) shall be entitled to have the
Securities held by it covered by such Shelf Registration Statement unless such
Holder agrees in writing to be bound by all the provisions of this Agreement
applicable to such Holder.


 


(b)  The Company shall use its commercially
reasonable efforts to keep the Shelf Registration Statement continuously
effective in order to permit the prospectus included therein (the “Prospectus”)
to be lawfully delivered by the Holders of the relevant Securities, for a
period that will terminate when all the Securities covered by the Shelf
Registration Statement (i) have been sold pursuant thereto or (ii) are no
longer restricted securities (as defined in Rule 144 under the Securities
Act, or any successor rule thereof), assuming for this purpose that the
Holders thereof are not affiliates (as defined in Rule 144(a)(1) under the
Securities Act) of the Company (in any such case, such period being called the
“Shelf
Registration Period”).  The
Company shall be deemed not to have used its commercially reasonable efforts to
keep the Shelf Registration Statement effective during the requisite period if
it voluntarily takes any action that would result in Holders of Securities
covered thereby not being able to offer and sell such Securities during that period,
unless such action is (i) required by applicable law or (ii) taken by the
Company in good faith and contemplated by Section 2(b)(v) below, and the
Company thereafter complies with the requirements of Section 2(h).


 


(c)  The
Company may suspend the use of the Prospectus for a period not to exceed an
aggregate of 45 days in any 90-day period or an aggregate of 90 days in any
twelve-month period if the Board of Directors of the Company, or the Chief
Executive Officer or the Chief Financial Officer of the Company, shall have
determined in good faith that because of valid business reasons (not including
avoidance of the Company’s obligations hereunder), including, without
limitations, the acquisition or divestiture of assets, pending corporate
developments, public filings with the Commission and similar events, it is in
the interest of the Company to suspend such use, and prior to suspending such
use the Company provides written notice to the Initial Purchasers and the
Holders of the Securities, which notice need not specify the nature of the
event giving rise to such suspension (such period during which the availability
of the Shelf Registration Statement and related Prospectus is suspended being a
“Deferral
Period”)


 


(d)  Notwithstanding any other provisions of this
Agreement to the contrary, the Company shall cause the Shelf Registration
Statement and the Prospectus and any amendment or supplement thereto, as of the
effective date of the Shelf Registration Statement, amendment or supplement,
(i) to comply in all material respects with the applicable requirements of the
Securities Act and the rules and regulations of the Commission and (ii) not to
contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.


 


2.  Registration Procedures.  In connection with the Shelf Registration
contemplated by  Section 1 hereof,
the following provisions shall apply:


 


(a)  The Company shall (i) furnish to each
Initial Purchaser, prior to the filing thereof with the Commission, a copy of
the Shelf Registration Statement and each amendment thereof and each
supplement, if any, to the prospectus included therein and, in the event that
an Initial Purchaser (with respect to any portion of an unsold allotment from
the original offering) is participating in the Shelf Registration Statement,
shall use its commercially reasonable efforts to reflect in each such document,
when so filed with the Commission, such comments as such Initial Purchaser
reasonably may propose; and (ii) include the names of the Holders who have
delivered written notice to the Company in accordance with Section 2(m) of this
Agreement that they propose to sell Securities pursuant to the Shelf
Registration Statement as selling securityholders.


 


(b)  The Company shall give written notice to the
Initial Purchasers and the Holders of the Securities (which notice pursuant to
clauses (ii)-(v) hereof shall be accompanied by an instruction to suspend the
use of the Prospectus until the requisite changes have been made, if
applicable):


 


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(i)
when the Shelf Registration Statement or any amendment thereto has been filed
with the Commission and when the Shelf Registration Statement or any
post-effective amendment thereto has become effective;


 


(ii)
of any request by the Commission for amendments or supplements to the Shelf
Registration Statement or the prospectus included therein or for additional
information;


 


(iii)
of the issuance by the Commission of any stop order suspending the
effectiveness of the Shelf Registration Statement or the initiation of any
proceedings for that purpose;


 


(iv)
of the receipt by the Company or its legal counsel of any notification with
respect to the suspension of the qualification of the Securities for sale in
any jurisdiction or the initiation or threatening of any proceeding for such
purpose; and


 


(v) of
the happening of any event that requires the Company to make changes in the
Shelf Registration Statement or the Prospectus in order that the Shelf
Registration Statement or the Prospectus 
does not contain an untrue statement of a material fact nor omit to
state a material fact required to be stated therein or necessary to make the
statements therein (in the case of the Prospectus, in the light of the
circumstances under which they were made) not misleading, which written notice
need not provide any detail as to the nature of such event; provided, that such
notice need only be provided to the Initial Purchasers and to Holders who are
named as selling stockholders in the prospectus relating to the Shelf
Registration Statement, as then amended or supplemented.


 


(c)  The Company shall make every commercially
reasonable effort to obtain the withdrawal at the earliest possible time of any
order suspending the effectiveness of the Shelf Registration Statement.


 


(d)  The Company shall furnish to each Holder of
Securities included within the coverage of the Shelf Registration, without
charge, at least one copy of the Shelf Registration Statement and any post-effective
amendment thereto, including financial statements and schedules, and, if the
Holder so requests in writing, all exhibits thereto (including those, if any,
incorporated by reference).


 


(e)  The Company shall, during the Shelf
Registration Period, deliver to each Holder of Securities included within the
coverage of the Shelf Registration, without charge, as many copies of the
Prospectus (including each preliminary prospectus) included in the Shelf
Registration Statement and any amendment or supplement thereto as such person
may reasonably request.  The Company
consents, subject to the provisions of this Agreement, to the use of the
Prospectus or any amendment or supplement thereto by each of the selling
Holders of the Securities in connection with the offering and sale of the
Securities covered by the Prospectus, or any amendment or supplement thereto,
included in the Shelf Registration Statement.


 


(f)  Prior to any public offering of the
Securities pursuant to the Shelf Registration Statement, the Company shall
register or qualify or cooperate with the Holders of the Securities included
therein and their respective counsel in connection with the registration or
qualification of the Securities for offer and sale under the securities or
“blue sky” laws of such states of the United States as any Holder of the
Securities reasonably requests in writing and do any and all other acts or
things necessary or advisable to enable the offer and sale in such
jurisdictions of the Securities covered by such Registration Statement; provided,
however, that the Company shall not be required to (i) qualify
generally to do business in any jurisdiction where it is not then so qualified
or (ii) take any action which would subject it to general service of
process or to taxation in any jurisdiction where it is not then so subject.


 


(g)  The Company shall cooperate with the Holders
of the Securities to facilitate the timely preparation and delivery of
certificates representing the Securities to be sold pursuant to any
Registration Statement free of any restrictive legends and in such
denominations and registered in such names as the


 


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Holders may request a reasonable period of time prior to sales of the
Securities pursuant to the Shelf Registration Statement; provided that
nothing herein will require the Company to prepare physical certificates for
the Initial Securities unless required by the Indenture.


 


(h)  Upon the occurrence of any event
contemplated by paragraphs (ii) through (v) of Section 2(b) above
during the period for which the Company is required to maintain an effective
Shelf Registration Statement, the Company shall promptly prepare and file a
post-effective amendment to the Shelf Registration Statement or an
amendment or supplement to the Prospectus and any other required document so
that, as thereafter delivered to Holders or purchasers of the Securities, the
Prospectus will not contain an untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were made,
not misleading.  If the Company notifies
the Initial Purchasers and the Holders in accordance with paragraphs
(ii) through (v) of Section 2(b) above to suspend the use of the
Prospectus  until the requisite changes
to the Prospectus have been made or the Company otherwise notifies the Initial
Purchasers and the Holders of its election to suspend the availability of the
Shelf Registration and the Prospectus pursuant to Section 1(c) above, then the
Initial Purchasers and the Holders shall suspend use of such Prospectus.


 


(i)  Not later than the effective date of the
Shelf Registration Statement, the Company will provide CUSIP numbers for the
Initial Securities and the Common Stock registered under the Shelf Registration
Statement, and provide the Trustee with one or more printed certificates for
the Initial Securities, in a form eligible for deposit with The Depository
Trust Company.


 


(j)  The Company will comply with all rules and
regulations of the Commission to the extent and so long as they are applicable
to the Shelf Registration and will make generally available to its security
holders (or otherwise provide in accordance with Section 11(a) of the
Securities Act) an earnings statement satisfying the provisions of
Section 11(a) of the Securities Act, no later than 45 days after the
end of a 12-month period (or 90 days, if such period is a fiscal
year) beginning with the first month of the Company’s first fiscal quarter
commencing after the effective date of the Shelf Registration Statement, which
statement shall cover such 12-month period.


 


(k)  The Company shall cause the Indenture to be
qualified under the Trust Indenture Act of 1939, as amended, (the “Trust
Indenture Act”) in a timely manner and containing such changes, if
any, as shall be necessary for such qualification.  In the event that such qualification would require the
appointment of a new trustee under the Indenture, the Company shall appoint a
new trustee thereunder pursuant to the applicable provisions of the Indenture.


 


(l)  Each Holder agrees, by acquisition of the
Securities, that such Holder shall not be entitled to sell any such Securities
pursuant to the Shelf Registration Statement or to receive a Prospectus
relating thereto unless such Holder has furnished the Company with a selling securityholder
Notice and Questionnaire  substantially
in the form of Appendix A hereto (the “Notice and Questionnaire”) as required
pursuant to Section 2(m) hereof and the information required by the next
sentence.  The Company may require each
Holder of Securities to be sold pursuant to the Shelf Registration Statement to
furnish to the Company such information regarding the Holder and the
distribution of the Securities as the Company may from time to time reasonably
require for inclusion in the Shelf Registration Statement, and the Company may
exclude from such registration the Securities of any Holder that unreasonably
fails to furnish such information within a reasonable time after receiving such
request.


 


(m)  Each Holder agrees, by acquisition of the Securities,
that if such Holder wishes to sell such Holder’s Securities pursuant to the
Shelf Registration Statement and related Prospectus, it will do so in
accordance with this Section 2(m).  Each
Holder wishing to sell Securities pursuant to a Shelf Registration Statement
and related Prospectus agrees to deliver a properly completed and signed Notice
and Questionnaire to the Company.  Upon
receipt of a properly completed Notice and Questionnaire from such Holder, the
Company shall use its commercially reasonable efforts to name such Holder as a
selling securityholder in the Shelf Registration Statement in the initial
filing thereof, or if such Shelf Registration Statement has been filed, by
means of a pre-effective amendment or, if permitted by the Commission, by


 


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means of a prospectus supplement to the Shelf Registration Statement
within five business days of receipt thereof. 
If the Commission shall not permit the Company to name such Holder as a
selling securityholder in the Shelf Registration Statement by means of a
prospectus supplement to the Shelf Registration Statement, the Company shall
use its commercially reasonable efforts to file a post-effective amendment to
name such Holder as a selling securityholder, provided, however,
that the Company shall have no obligation to pay Additional Interest to such
Holder for its failure to file a post-effective amendment.


 


(n)  The Company shall enter into such customary
agreements (including, if requested, an underwriting agreement in customary
form) and take all such other actions, if any, as any Holder shall reasonably
request in order to facilitate the disposition of the Securities pursuant to
the Shelf Registration.


 


(o)  The Company shall (i) make reasonably
available for inspection by any underwriter participating in any disposition
pursuant to the Shelf Registration Statement and any attorney, accountant or
other agent retained by the Holders or any such underwriter, all relevant
financial and other records, pertinent corporate documents and properties of
the Company and (ii) cause the Company’s officers, directors, employees,
accountants and auditors to supply all relevant information reasonably
requested by any such underwriter, attorney, accountant or agent in connection
with the Shelf Registration Statement, in each case, as shall be reasonably
necessary to enable such persons, to conduct a reasonable investigation within
the meaning of Section 11 of the Securities Act; provided, however,
that the foregoing inspection and information gathering shall be coordinated on
behalf of you and on behalf of the other parties, by one counsel designated by
you and by such other parties as described in Section 3 hereof.  The Company may request such persons
referred to above to execute a customary confidentiality agreement with respect
to any information the Company reasonably believes to be proprietary or
confidential.


 


(p)  The Company, if requested by any Holder of
Securities covered by the Shelf Registration Statement, shall cause
(i) its counsel to deliver an opinion and updates thereof relating to the
Securities in customary form addressed to such Holders and the managing
underwriters, if any, thereof, and dated, in the case of the initial opinion,
the effective date of such Shelf Registration Statement; (ii) its officers
to execute and deliver all customary documents and certificates and updates
thereof reasonably requested by any underwriters of the Securities and
(iii) its independent public accountants and the independent public
accountants with respect to any other entity for which financial information is
provided in the Shelf Registration Statement to provide to the selling Holders
of the applicable Securities and any underwriter therefor a comfort letter in
customary form and covering matters of the type customarily covered in comfort
letters in connection with primary underwritten offerings, subject to receipt
of appropriate documentation as contemplated, and only if permitted, by
Statement of Auditing Standards No. 72.


 


(q)  In the event that any broker-dealer
registered under the Exchange Act shall underwrite any Securities or
participate as a member of an underwriting syndicate or selling group or
“assist in the distribution” (within the meaning of the Conduct Rules (the “Rules”)
of the National Association of Securities Dealers, Inc. (“NASD”)) thereof, whether as a
Holder of such Securities or as an underwriter, a placement or sales agent or a
broker or dealer in respect thereof, or otherwise, the Company will assist such
broker-dealer in complying with the requirements of such Rules, including,
without limitation, by (i) if such Rules, including Rule 2720, shall
so require, engaging a “qualified independent underwriter” (as defined in Rule 2720)
to participate in the preparation of the Shelf Registration Statement relating
to such Securities, to exercise usual standards of due diligence in respect
thereto and, if any portion of the offering contemplated by such Registration
Statement is an underwritten offering or is made through a placement or sales
agent, to recommend the yield of such Securities, (ii) indemnifying any
such qualified independent underwriter to the extent of the indemnification of
underwriters provided in Section 5 hereof and (iii) providing such
information to such broker-dealer as may be required in order for such
broker-dealer to comply with the requirements of the Rules.


 


(r)  The Company shall use its commercially
reasonable efforts to take all other steps necessary to effect the registration
of the Securities covered by a Registration Statement contemplated hereby.


 


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3.  Registration Expenses.  (a) All expenses incident to the Company’s
performance of and compliance with this Agreement will be borne by the Company,
regardless of whether a Registration Statement is ever filed or becomes
effective, including without limitation;


 


(i)  all registration and filing fees and
expenses;


 


(ii) all
fees and expenses of compliance with federal securities and state “blue sky” or
securities laws;


 


(iii) all
expenses of printing (including printing certificates for the Securities to be
issued and printing of Prospectuses), messenger and delivery services and
telephone;


 


(iv) all
fees and disbursements of counsel for the Company;


 


 (v) all application and filing fees in
connection with listing the Securities on a national securities exchange or
automated quotation system pursuant to the requirements hereof; and


 


(vi) all
fees and disbursements of independent certified public accountants of the
Company (including the expenses of any special audit and comfort letters
required by or incident to such performance).


 


The Company will bear its
internal expenses (including, without limitation, all salaries and expenses of
its officers and employees performing legal or accounting duties), the expenses
of any annual audit and the fees and expenses of any person, including special
experts, retained by the Company.


 


(b)  In connection with the Shelf Registration
Statement required by this Agreement, the Company will reimburse the Initial
Purchasers and the Holders of Securities covered by the Shelf Registration
Statement, for the reasonable fees and disbursements of not more than one
counsel, designated by the Holders of a majority in principal amount of the
Securities covered by the Shelf Registration Statement (provided that Holders
of Common Stock issued upon the conversion of the Initial Securities shall be
deemed to be Holders of the aggregate principal amount of Initial Securities
from which such Common Stock was converted) to act as counsel for the Holders
in connection therewith.


 


(c)  In connection with any underwritten offering
of any Transfer Restricted Securities covered by a Shelf Registration
Statement, the participating Holders shall be responsible for the payment of
any and all underwriters and brokers and dealers discounts and commissions in
proportion to the number of Securities sold by such Holders.


 


4.  Indemnification.  (a)  The Company agrees to
indemnify and hold harmless each Holder and each person, if any, who controls
such Holder within the meaning of the Securities Act or the Exchange Act (each
Holder, and such controlling persons are referred to collectively as the “Indemnified
Parties”)
from and against any losses, claims, damages or liabilities, joint or several,
or any actions in respect thereof (including, but not limited to, any losses,
claims, damages, liabilities or actions relating to purchases and sales of the
Securities) to which each Indemnified Party may become subject under the
Securities Act, the Exchange Act or otherwise, insofar as such losses, claims,
damages, liabilities or actions arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the Shelf
Registration Statement or prospectus including any document incorporated by
reference therein, or in any amendment or supplement thereto or in any
preliminary prospectus relating to the Shelf Registration, or arise out of, or
are based upon, the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances in which they were made, not misleading, and
shall reimburse, as incurred, the Indemnified Parties for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action in respect thereof;
provided, however, that (i) the Company shall not be liable
in any such case to the extent that such loss, claim, damage or liability
arises out of or is based upon any untrue statement or alleged untrue statement
or omission or alleged omission made in the Shelf Registration


 


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Statement or prospectus or in any amendment or supplement thereto or in
any preliminary prospectus relating to the Shelf Registration in reliance upon
and in conformity with written information pertaining to such Holder and
furnished to the Company by or on behalf of such Holder specifically for
inclusion therein and (ii) with respect to any untrue statement or
omission or alleged untrue statement or omission made in any preliminary
prospectus relating to the Shelf Registration Statement, the indemnity
agreement contained in this subsection (a) shall not inure to the benefit
of any Holder from whom the person asserting any such losses, claims, damages
or liabilities purchased the Securities concerned, to the extent that a
prospectus relating to such Securities was required to be delivered by such
Holder under the Securities Act in connection with such purchase and any such
loss, claim, damage or liability of such Holder results from the fact that
there was not sent or given to such person, at or prior to the written
confirmation of the sale of such Securities to such person, a copy of the final
prospectus if the Company had previously furnished copies thereof to such
Holder; provided  further, however, that this indemnity
agreement will be in addition to any liability which the Company may otherwise
have to such Indemnified Party.  The
Company shall also indemnify underwriters, their officers and directors and
each person who controls such underwriters within the meaning of the Securities
Act or the Exchange Act to the same extent as provided above with respect to
the indemnification of the Holders of the Securities if requested by such
Holders.


 


(b)  Each Holder, severally and not jointly, will
indemnify and hold harmless the Company, its officers and directors and each
person, if any, who controls the Company within the meaning of the Securities
Act or the Exchange Act from and against any losses, claims, damages or
liabilities or any actions in respect thereof, to which the Company or any such
controlling person may become subject under the Securities Act, the Exchange
Act or otherwise, insofar as such losses, claims, damages, liabilities or
actions arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Shelf Registration Statement or
prospectus or in any amendment or supplement thereto or in any preliminary
prospectus relating to the Shelf Registration, or arise out of or are based
upon the omission or alleged omission to state therein a material fact
necessary to make the statements therein not misleading, in the light of the
circumstances in which they were made, but in each case only to the extent that
the untrue statement or omission or alleged untrue statement or omission was made
in reliance upon and in conformity with written information pertaining to such
Holder and furnished to the Company by or on behalf of such Holder specifically
for inclusion therein; and, subject to the limitation set forth immediately
preceding this clause, shall reimburse, as incurred, the Company for any legal
or other expenses reasonably incurred by the Company or any such controlling
person in connection with investigating or defending any loss, claim, damage,
liability or action in respect thereof. 
This indemnity agreement will be in addition to any liability which such
Holder may otherwise have to the Company or any of its controlling persons.


 


(c)  Promptly after receipt by an indemnified
party under this Section 4 of notice of the commencement of any action or
proceeding (including a governmental investigation), such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 4, notify the indemnifying party of the
commencement thereof; but the failure to
notify the indemnifying party shall not relieve it from any liability that it
may have under subsection (a) or (b) above except to the extent that it has
been materially prejudiced (through the forfeiture of substantive rights or
defenses) by such failure; and provided further that the failure to notify the
indemnifying party shall not relieve it from any liability that it may have to
an indemnified party otherwise than
under subsection (a) or (b) above.  In
case any such action is brought against any indemnified party, and it notifies
the indemnifying party of the commencement thereof, the indemnifying party will
be entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof the
indemnifying party will not be liable to such indemnified party under this
Section 4 for any legal or other expenses, other than reasonable costs of
investigation, subsequently incurred by such indemnified party in connection
with the defense thereof.  No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened action 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 (i)
includes an unconditional release of such indemnified party from all liability
on any claims


 


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that are the subject matter of such action, and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act by or
on behalf of any indemnified party.


 


(d)  If the indemnification provided for in this
Section 4 is unavailable or insufficient to hold harmless an indemnified
party under subsections (a) or (b) above, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to in subsection (a) or (b) above in such proportion as is
appropriate to reflect the relative fault of the indemnifying party or parties
on the one hand and the indemnified party on the other in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities (or actions in respect thereof) as well as any other relevant
equitable considerations.  The relative
fault of the parties 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 Company on the one hand or such Holder or such other indemnified
party, as the case may be, on the other, and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.  The amount paid
by an indemnified party as a result of the losses, claims, damages or
liabilities referred to in the first sentence of this subsection (d) shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any action or
claim which is the subject of this subsection (d).  Notwithstanding any other provision of this
Section 4(d), the Holders shall not be required to contribute any amount
in excess of the amount by which the net proceeds received by such Holders from
the sale of the Securities pursuant to the Shelf Registration Statement exceeds
the amount of damages which such Holders have otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission.  No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. 
For purposes of this paragraph (d), each person, if any, who controls such
indemnified party within the meaning of the Securities Act or the Exchange Act
shall have the same rights to contribution as such indemnified party and each
person, if any, who controls the Company within the meaning of the Securities
Act or the Exchange Act shall have the same rights to contribution as the
Company.


 


(e)  The agreements contained in this
Section 4 shall survive the sale of the Securities pursuant to the Shelf
Registration Statement and shall remain in full force and effect, regardless of
any termination or cancellation of this Agreement or any investigation made by
or on behalf of any indemnified party.


 


5.  Additional Interest Under Certain Circumstances.  (a)  Additional interest (the “Additional
Interest”)
with respect to the Initial Securities that are Transfer Restricted Securities
(as defined below) shall be assessed as follows if any of the following events
occur (each such event in clauses (i) through (v) below being herein
called a “Registration
Default”):


 


(i)  the Shelf Registration Statement has not
been filed with the Commission by the 90th day after the latest date
of original issuance of the Initial Securities;


 


(ii)  the Shelf Registration Statement has not
been declared effective by the Commission by the 180th day after the
latest date of original issue of the Initial Securities;


 


(iii)
the Company fails to supplement the Shelf Registration Statement within the
time period set forth in Section 2(m) to name a Holder as a selling
securityholder therein as contemplated by Section 2(m);


 


(iv)  the Shelf Registration Statement is declared
effective by the Commission but, prior to the end of the Registration Period,
(A)(1) the Shelf Registration Statement thereafter ceases to be effective
or (2) the Shelf Registration Statement or the Prospectus ceases to be
usable in connection with resales of Transfer Restricted Securities (as defined
below) during the periods specified herein because either (x) any event
occurs as a result of which the Prospectus forming part of such Shelf Registration
Statement would include any untrue statement of a material fact or


 


8

















 


omit to state any
material fact necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, or (y) it shall
be necessary to amend such Shelf Registration Statement or supplement the
related prospectus, to comply with the Securities Act or the Exchange Act or
the respective rules thereunder and (B) the Company does not cause the Shelf
Registration Statement to become effective within five business days after it
ceases to be effective or usable by a post-effective amendment or additional
Shelf Registration Statement being filed and declared effective or a report
filed pursuant to the Exchange Act; or


 


(v)
the Shelf Registration Statement is declared effective by the Commission but,
prior to the end of the Registration Period, the Company does not terminate any
Deferral Period within the time provided in Section 1(c).


 


Each of the foregoing
will constitute a Registration Default whatever the reason for any such event
and whether it is voluntary or involuntary or is beyond the control of the
Company or pursuant to operation of law or as a result of any action or
inaction by the Commission .


 


(b) Additional Interest
shall accrue on the Initial Securities that are Transfer Restricted Securities
over and above the interest set forth in the title of the Initial Securities
from and including the date on which any such Registration Default shall occur
to but excluding the earlier of (i) the date on which all such Registration
Defaults have been cured and (ii) the day following the last day of the Shelf
Registration Period at a rate of 0.50% per annum (the “Additional Interest Rate”).  In the case of a registration default
described in Section 5(a)(iii), the Company’s obligation to pay additional
interest extends only to the affected Initial Securities.  The Company shall have no other liabilities
for monetary damages with respect to its registration obligations.


 


(c)  Any amounts of Additional Interest due
pursuant to Section 5(a) will be payable in cash on the regular interest
payment dates with respect to the Initial Securities.  The amount of Additional Interest will be determined by multiplying
the applicable Additional Interest Rate by the principal amount of the Initial
Securities, further multiplied by a fraction, the numerator of which is the
number of days such Additional Interest Rate was applicable during such
period (determined on the basis of a 360-day year comprised of twelve 30-day
months), and the denominator of which is 360.


 


(d)  “Transfer Restricted Securities” means each
Security until (i) the date on which the offer and sale of such Security
has been effectively registered under the Securities Act and such security has
been disposed of in accordance with the Shelf Registration Statement or
(ii) the date on which such Security is sold to the public pursuant to
Rule 144 under the Securities Act or is saleable pursuant to Rule 144(k)
under the Securities Act.


 


6.  Rules 144 and 144A.  The Company shall use its commercially
reasonable efforts to file the reports required to be filed by it under the
Securities Act and the Exchange Act in a timely manner and, if at any time the
Company is not required to file such reports, it will, upon the request of any
Holder, make publicly available other information so long as necessary to
permit sales of their securities pursuant to Rules 144 and 144A.  The Company covenants that it will take such
further action as any Holder may reasonably request, all to the extent required
from time to time to enable such Holder to sell Transfer Restricted Securities
without registration under the Securities Act within the limitation of the
exemptions provided by Rules 144 and 144A (including the requirements of
Rule 144A(d)(4)).  The Company will
provide a copy of this Agreement to prospective purchasers of Securities
identified to the Company by the Initial Purchasers upon request.  Upon the request of any Holder, the Company
shall deliver to such Holder a written statement as to whether it has complied
with such requirements.  Notwithstanding
the foregoing, nothing in this Section 6 shall be deemed to require the
Company to register any of its securities pursuant to the Exchange Act.


 


7.  Underwritten Registrations.  If any of the Transfer Restricted Securities
covered by the Shelf Registration are to be sold in an underwritten offering,
the investment banker or investment bankers and manager or managers that will
administer the offering (“Managing Underwriters”) will be selected by
the


 


9

















 


holders of a majority in aggregate principal amount of such Transfer
Restricted Securities to be included in such offering (provided that holders of
Common Stock issued upon conversion of the Initial Securities shall not be
deemed holders of Common Stock, but shall be deemed to be holders of the
aggregate principal amount of Initial Securities from which such Common Stock was
converted); provided that such Managing Underwriters must be reasonably
satisfactory to the Company and provided  further, that the
Company shall not be required to arrange for or participate in more than one
underwritten offering on behalf of the Holders pursuant to this Agreement.


 


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 and
other documents reasonably required under the terms of such underwriting arrangements.


 


8.  Miscellaneous.


 


(a)  Remedies. 
The Company acknowledges and agrees that any failure by the Company to
comply with its obligations under Section 1 hereof may result in material
irreparable injury to the Initial Purchasers or the Holders for which there is
no adequate remedy at law, that it will not be possible to measure damages for
such injuries precisely and that, in the event of any such failure, the Initial
Purchasers or any Holder may obtain such relief as may be required to
specifically enforce the Company’s obligations under Sections 1
hereof.  The Company further agrees to
waive the defense in any action for specific performance that a remedy at law
would be adequate.


 


(b)  No Inconsistent Agreements.  The Company will not on or after the date of
this Agreement enter into any agreement with respect to its securities that is
inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof.  The rights granted to the Holders hereunder do not in any way
conflict with and are not inconsistent with the rights granted to the holders
of the Company’s securities under any agreement in effect on the date hereof.


 


(c)  Amendments and Waivers.  The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, except by the Company and the written
consent of the holders of a majority in principal amount of the Securities
affected by such amendment, modification, supplement, waiver or consents
(provided that holders of Common Stock issued upon conversion of Initial
Securities shall not be deemed holders of Common Stock, but shall be deemed to
be holders of the aggregate principal amount of Initial Securities from which
such Common Stock was converted). 
Without the consent of the Holder of each Initial Security, however, no
modification may change the provisions relating to the payment of Additional
Interest.  Each Holder of Transfer
Restricted 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, whether or not any notice, writing or marking indicating
such amendment, modification, supplement, waiver or consent appears on the
Transfer Restricted Securities or is delivered to such Holder.  Each Holder may waive compliance with
respect to any obligation of the Company under this Agreement as it may apply
or be enforced by such particular Holder.


 


(d)  Notices. 
All notices and other communications provided for or permitted hereunder
shall be made in writing by hand delivery, first-class mail, facsimile
transmission, or air courier which guarantees overnight delivery:


 


(1)  if to a Holder of the Securities, at the
most current address given by such Holder to the Company.


 


(2)  if to the Initial Purchasers;


 


10

















 


Credit Suisse First
Boston LLC


Eleven Madison Avenue


New York, NY 10010-3629


Fax No.:  (212) 325-8278


Attention:  Transactions Advisory Group


 


with a copy to:


 


Davis Polk &
Wardwell


1600 El Camino Real


Menlo Park, CA 94025


Attn:  Alan Denenberg


 


(3)           if to the Company, at its address as
follows:


 


DuPont Photomasks, Inc.


131 Old Settlers
Boulevard


Round Rock, TX 78664


Attn:  General Counsel


 


All such notices and
communications shall be deemed to have been duly given:  at the time delivered by hand, if personally
delivered; three business days after being deposited in the mail, postage
prepaid, if mailed; when receipt is acknowledged by recipient’s facsimile
machine operator, if sent by facsimile transmission; and on the day
delivered, if sent by overnight air courier guaranteeing next day
delivery.


 


(e) Third Party Beneficiaries.  The Holders shall be third party
beneficiaries to the agreements made hereunder between the Company, on the one
hand, and the Initial Purchasers, on the other hand, and shall have the right
to enforce such agreements directly to the extent they may deem such
enforcement necessary or advisable to protect their rights or the rights of
Holders hereunder.


 


(f)  Successors and Assigns.  This Agreement shall be binding upon the
Company and its successors and assigns.


 


(g)  Counterparts.  This Agreement may be executed in any number of counterparts and
by the parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.


 


(h)  Headings. 
The headings in this Agreement are for convenience of reference only and
shall not limit or otherwise affect the meaning hereof.


 


(i)  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.


 


By the execution and
delivery of this Agreement, the Company submits to the nonexclusive
jurisdiction of any federal or state court in the State of New York.


 


(j)  Severability.  If any one or more of the provisions contained herein, or the
application thereof in any circumstance, is held invalid, illegal or
unenforceable, the validity, legality and enforceability of any such provision
in every other respect and of the remaining provisions contained herein shall
not be affected or impaired thereby.


 


(k)  Securities Held by the Company.  Whenever the consent or approval of Holders
of a specified percentage of principal amount of Securities is required
hereunder, Securities held by the Company or its


 


11

















 


affiliates (other than subsequent Holders of Securities if such
subsequent Holders are deemed to be affiliates solely by reason of their
holdings of such Securities) shall not be counted in determining whether such
consent or approval was given by the Holders of such required percentage.


 


If the foregoing is in
accordance with your understanding of our agreement, please sign and return to
the Company a counterpart hereof, whereupon this instrument, along with all
counterparts, will become a binding agreement among the several Initial
Purchasers and the Company in accordance with its terms.


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  DuPont Photomasks, Inc.

  
	
   

  	
   

  
	
   

  	
  by

  	
   

  
	
   

  	
   

  	
  /s/  James W. Boeckman

  
	
   

  	
   

  	
  Name: James W. Boeckman

  
	
   

  	
   

  	
  Title:
  Executive Vice President and General

  Counsel

  



 


The foregoing
Registration

Rights Agreement is hereby confirmed

and accepted as of the date first

above written.


 


	
  CREDIT SUISSE FIRST
  BOSTON LLC

  
	
  LEHMAN BROTHERS INC.

  
	
   

  
	
  By:  CREDIT SUISSE FIRST BOSTON LLC

  
	
   

  
	
  by

  	
   

  
	
   

  	
  /s/  John C. Hodge

  	
   

  
	
   

  	
  Name:  John C. Hodge

  
	
   

  	
  Title:  Managing Director

  
	
   

  	
   

  
	
  By:  LEHMAN BROTHERS INC.

  
	
   

  	
   

  
	
  by

  	
   

  
	
   

  	
  /s/  Jon L. Krahulik

  	
   

  
	
   

  	
  Name:  Jon L. Krahulik

  
	
   

  	
  Title:  Vice President

  



 


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