EXHIBIT 10.3
FORM OF REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into as of August 12, 2004 by and among Interstate Bakeries Corporation,
a Delaware corporation (the "Company"), and [_____________] (each, a "Purchaser"
and collectively, the "Purchasers"). Each Purchaser executed a purchase
agreement dated as of August 11, 2004 between the Company and such Purchaser
(each, a "Purchase Agreement" and together, the "Purchase Agreements").
In order to induce each of the Purchasers to enter into its respective
Purchase Agreement, the Company has agreed to provide the registration rights
set forth in this Agreement. The execution of this Agreement is a condition to
the closing under the Purchase Agreements.
The Company agrees with the Purchasers (i) for their benefit as the
Purchasers and (ii) for the benefit of the beneficial owners (including the
Purchasers) from time to time of the Notes (as defined herein) and the
beneficial owners from time to time of the Underlying Common Stock (as defined
herein) issued upon conversion of the Notes (each of the foregoing a "Holder"
and together the "Holders"), as follows:
Section 1. Definitions. Capitalized terms used herein without
definition shall have their respective meanings set forth in the Purchase
Agreement. As used in this Agreement, the following terms shall have the
following meanings:
"Affiliate" means with respect to any specified person, an "affiliate,"
as defined in Rule 144, of such person.
"Amendment Effectiveness Deadline Date" has the meaning set forth in
Section 2(d) hereof.
"Applicable Conversion Price" means, as of any date of determination,
the Conversion Price of the Notes then in effect as determined in accordance
with the terms of the Indenture or, if no Notes are then outstanding, the
Conversion Rate that would be in effect were Notes then outstanding.
"Business Day" has the meaning assigned to such term in the Indenture.
"Common Stock" has the meaning assigned to such term in the Indenture.
"Conversion Price" has the meaning assigned to such term in the
Indenture.
"▇▇▇▇▇" means the Electronic Data Gathering, Analysis, and Retrieval
system by which companies file forms with the SEC.
"Effectiveness Deadline Date" has the meaning set forth in Section 2(a)
hereof.
"Effectiveness Period" means a period that will terminate upon the
earliest of (1) the date on which all Registrable Securities held by
non-affiliates are eligible to be sold to the public pursuant to Rule 144(k)
under the Securities Act or any successor provision thereof, (2) the date when
each of the Registrable Securities covered by the Shelf Registration Statement
has been effectively registered under the Securities Act and disposed of in
accordance with the Shelf Registration Statement, (3) the date on which all
Registrable Securities have been resold pursuant to Rule 144 under the
Securities Act, (4) the date on which all the Notes and the Registrable
Securities cease to be outstanding and (5) 60 days after the date that is the
two year anniversary of the Issue Date.
"Event" has the meaning set forth in Section 2(e) hereof.
"Event Date" has the meaning set forth in Section 2(e) hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC promulgated thereunder.
"Filing Deadline Date" has the meaning set forth in Section 2(a)
hereof.
"Holder" has the meaning set forth in the third paragraph of this
Agreement.
"Indenture" means the Indenture, dated as of August 12, 2004 between
the Company and U.S. Bank National Association as trustee, pursuant to which the
Notes are being issued.
"Initial Shelf Registration Statement" has the meaning set forth in
Section 2(a) hereof.
"Issue Date" means the first date of original issuance of the Notes.
"Liquidated Damages Accrual Period" has the meaning set forth in
Section 2(e) hereof.
"Liquidated Damages" has the meaning set forth in Section 2(e) hereof.
"Liquidated Damages Payment Date" means each interest payment date
under the Indenture in the case of Notes, and each August 15 and February 15 in
the case of the Underlying Common Stock.
"Material Event" has the meaning set forth in Section 3(i) hereof.
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"Notes" means the 6% Senior Subordinated Convertible Notes due 2014 of
the Company to be purchased pursuant to the Purchase Agreements.
"Notice and Questionnaire" means a written notice and questionnaire
delivered to the Company containing the information called for by the Selling
Securityholder Notice and Questionnaire attached as Annex A hereto.
"Notice Holder" means, on any date, any Holder that has delivered a
Notice and Questionnaire to the Company on or prior to such date, so long as all
of their Registrable Securities that have been registered for resale pursuant to
a Notice and Questionnaire have not been sold in accordance with a Shelf
Registration Statement.
"Purchase Agreement" has the meaning set forth in the preamble hereof.
"Prospectus" means the prospectus included in any Shelf Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 415 promulgated under the
Securities Act), as amended or supplemented by any amendment or prospectus
supplement, including post-effective amendments, and all materials incorporated
by reference or explicitly deemed to be incorporated by reference in such
Prospectus.
"Record Holder" means (i) with respect to any Liquidated Damages
Payment Date relating to any Notes as to which any such Liquidated Damages has
accrued, the holder of record of such Note on the record date with respect to
the interest payment date under the Indenture on which such Liquidated Damages
Payment Date shall occur and (ii) with respect to any Liquidated Damages Payment
Date relating to the Underlying Common Stock as to which any such Liquidated
Damages has accrued, the registered holder of such Underlying Common Stock
fifteen (15) days prior to such Liquidated Damages Payment Date.
"Registrable Securities" means the Underlying Common Stock and any
securities into or for which such Underlying Common Stock has been converted,
and any security issued with respect thereto upon any stock dividend, split or
similar event until, in the case of any such security, the Effectiveness Period.
"Registration Expenses" has the meaning set forth in Section 5 hereof.
"Rule 144" means Rule 144 under the Securities Act, as such Rule may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
"Rule 144A" means Rule 144A under the Securities Act, as such Rule may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
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"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated by the SEC thereunder.
"Shelf Registration Statement" has the meaning set forth in Section
2(a) hereof.
"Subsequent Shelf Registration Statement" has the meaning set forth in
Section 2(b) hereof.
"Suspension Notice" has the meaning set forth in Section 3(i) hereof.
"Suspension Period" has the meaning set forth in Section 3(i) hereof.
"TIA" means the Trust Indenture Act of 1939, as amended.
"Trustee" means U.S. Bank National Association, the Trustee under the
Indenture.
"Underlying Common Stock" means the Common Stock issued or issuable
upon conversion or repurchase of the Notes, including any Common Stock issued or
issuable in connection with a Make-Whole Premium to be paid in accordance with
Article VIII of the Indenture.
Section 2. Shelf Registration. (a) The Company shall prepare and file
or cause to be prepared and filed with the SEC, as soon as practicable but in
any event by the date (the "Filing Deadline Date") that is one hundred twenty
(120) days after the Issue Date, a registration statement for an offering to be
made on a delayed or continuous basis pursuant to Rule 415 of the Securities Act
(a "Shelf Registration Statement") registering the resale from time to time by
Holders thereof of all of the Registrable Securities (the "Initial Shelf
Registration Statement"). The Initial Shelf Registration Statement shall be on
Form S-3 or another appropriate form permitting registration of such Registrable
Securities for resale by such Holders in accordance with the reasonable methods
of distribution elected by the Holders, reasonably approved by the Company, and
set forth in the Initial Shelf Registration Statement. The Company shall use its
reasonable best efforts to cause the Initial Shelf Registration Statement to be
declared effective under the Securities Act as promptly as is practicable but in
any event by the date (the "Effectiveness Deadline Date") that is two hundred
ten (210) days after the Issue Date, and to keep the Initial Shelf Registration
Statement (or any Subsequent Shelf Registration Statement) continuously
effective under the Securities Act until the expiration of the Effectiveness
Period. At the time the Initial Shelf Registration Statement is declared
effective, each Holder that became a Notice Holder on or prior to the date that
is five (5) Business Days prior to such time of effectiveness shall be named as
a selling securityholder in the Initial Shelf Registration Statement and the
related Prospectus in such a manner as to permit
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such Holder to deliver such Prospectus to purchasers of Registrable Securities
in accordance with applicable law.
(b) If the Initial Shelf Registration Statement or any Subsequent Shelf
Registration Statement ceases to be effective for any reason at any time during
the Effectiveness Period, the Company shall use its reasonable best efforts to
obtain the prompt withdrawal of any order suspending the effectiveness thereof,
and in any event shall within twenty (20) days of such cessation of
effectiveness amend the Shelf Registration Statement in a manner reasonably
expected to obtain the withdrawal of the order suspending the effectiveness
thereof, or file an additional Shelf Registration Statement covering all of the
securities that as of the date of such filing are Registrable Securities (a
"Subsequent Shelf Registration Statement"). If a Subsequent Shelf Registration
Statement is filed, the Company shall use its reasonable best efforts to cause
the Subsequent Shelf Registration Statement to become effective as promptly as
is practicable after such filing and to keep such Shelf Registration Statement
(or subsequent Shelf Registration Statement) continuously effective until the
end of the Effectiveness Period.
(c) The Company shall supplement and amend the Shelf Registration
Statement if required by the rules, regulations or instructions applicable to
the registration form used by the Company for such Shelf Registration Statement,
if required by the Securities Act or as reasonably requested by the Purchasers
or Trustee on behalf of the Holders covered by such Shelf Registration
Statement.
(d) Each Holder agrees that if such Holder wishes to sell Registrable
Securities pursuant to a Shelf Registration Statement and related Prospectus, it
will do so only in accordance with this Section 2(d) and Section 3(i). Each
Holder wishing to sell Registrable Securities pursuant to a Shelf Registration
Statement and related Prospectus agrees to deliver a completed and executed
Notice and Questionnaire to the Company prior to any attempted or actual
distribution of Registrable Securities under the Shelf Registration Statement;
provided that (i) the Company shall send the Notice and Questionnaire to each
Holder as soon as practicable, but not later than forty-five (45) Business Days
prior to the Filing Deadline Date and (ii) Holders shall have at least twenty
(20) Business Days from the date on which the Notice and Questionnaire is first
sent to such Holders by the Company to complete and return the Notice and
Questionnaire to the Company. From and after the date the Initial Shelf
Registration Statement is declared effective, the Company shall, as promptly as
practicable after the date a Notice and Questionnaire is delivered, and in any
event within the later of (x) ten (10) Business Days after such date or (y) ten
(10) Business Days after the expiration of any Suspension Period (1) in effect
when the Notice and Questionnaire is delivered or (2) put into effect within
five (5) Business Days of such delivery date, (i) if required by applicable law,
file with the SEC a post-effective amendment to the Shelf Registration Statement
or, if required by applicable law, prepare and file a supplement to the related
Prospectus or a supplement or amendment to any document incorporated therein by
reference or
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file any other required document so that the Holder delivering such Notice and
Questionnaire is named as a selling securityholder in the Shelf Registration
Statement and the related Prospectus in such a manner as to permit such Holder
to deliver such Prospectus to purchasers of the Registrable Securities in
accordance with applicable law and, if the Company shall file a post-effective
amendment to the Shelf Registration Statement, use its reasonable best efforts
to cause such post-effective amendment to be declared effective under the
Securities Act as promptly as is practicable, but in any event by the date (the
"Amendment Effectiveness Deadline Date") that is forty-five (45) days after the
date such post-effective amendment is required by this clause to be filed; (ii)
provide such Holder a reasonable number of copies of any documents filed
pursuant to Section 2(d)(i); and (iii) notify such Holder as promptly as
practicable after the effectiveness under the Securities Act of any
post-effective amendment filed pursuant to Section 2(d)(i); provided that if
such Notice and Questionnaire is delivered during a Suspension Period, or a
Suspension Period is put into effect within five (5) Business Days after such
delivery date, the Company shall so inform the Holder delivering such Notice and
Questionnaire and shall take the actions set forth in clauses (i), (ii) and
(iii) above within ten (10) Business Days after expiration of the Suspension
Period in accordance with Section 3(i). Notwithstanding anything contained
herein to the contrary, the Company shall be under no obligation to name any
Holder that is not a Notice Holder as a selling securityholder in any Shelf
Registration Statement or related Prospectus; provided, however, that any Holder
that becomes a Notice Holder pursuant to the provisions of this Section 2(d)
(whether or not such Holder was a Notice Holder at the time the Shelf
Registration Statement was declared effective) shall be named as a selling
securityholder in the Shelf Registration Statement or related Prospectus in
accordance with the requirements of this Section 2(d).
(e) The parties hereto agree that the Holders of Registrable Securities
will suffer damages, and that it would not be feasible to ascertain the extent
of such damages with precision, if (i) the Initial Shelf Registration Statement
has not been filed on or prior to the Filing Deadline Date, (ii) the Initial
Shelf Registration Statement has not been declared effective under the
Securities Act on or prior to the Effectiveness Deadline Date or (iii) the
Initial Shelf Registration Statement is filed and declared effective but shall
thereafter cease to be effective (without being succeeded immediately by an
additional registration statement filed and declared effective) or usable for
the offer and sale of Registrable Securities for a period of time (including any
Suspension Period) which shall exceed forty-five (45) days in the aggregate in
any three (3) month period or ninety (90) days in the aggregate in any twelve
(12) month period (each of the events of a type described in any of the
foregoing clauses (i) through (iii) are individually referred to herein as an
"Event," and the Filing Deadline Date in the case of clause (i), the
Effectiveness Deadline Date in the case of clause (ii), the date on which the
duration of the ineffectiveness or unusability of the Initial Shelf Registration
Statement in any period exceeds the number of days permitted by clause (iii)
hereof in the case of clause (iii), being referred to herein as an "Event
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Date"). Events shall be deemed to continue until the following dates with
respect to the respective types of Events: the date the Initial Shelf
Registration Statement is filed in the case of an Event of the type described in
clause (i), the date the Initial Shelf Registration Statement is declared
effective under the Securities Act in the case of an Event of the type described
in clause (ii), and the date the Initial Shelf Registration Statement becomes
effective or usable again in the case of an Event of the type described in
clause (iii).
Accordingly, commencing on (and including) any Event Date and ending on
(but excluding) the next date on which there are no Events that have occurred
and are continuing (a "Liquidated Damages Accrual Period"), the Company agrees
to pay, as liquidated damages and not as a penalty, an amount ("Liquidated
Damages") at the rate described below, payable periodically on each Liquidated
Damages Payment Date to Record Holders of Notes that are Registrable Securities
and of shares of Underlying Common Stock issued upon conversion of Notes that
are Registrable Securities, as the case may be, to the extent of, for each such
Liquidated Damages Payment Date, accrued and unpaid Liquidated Damages to (but
excluding) such Liquidated Damages Payment Date (or, if the Liquidated Damages
Accrual Period shall have ended prior to such Liquidated Damages Payment Date,
to the date of the end of the Liquidated Damages Accrual Period); provided that
any Liquidated Damages accrued with respect to any Note or portion thereof
called for redemption on a redemption date or converted into Underlying Common
Stock on a conversion date prior to the Liquidated Damages Payment Date, shall,
in any such event, be paid instead to the Holder who submitted such Note or
portion thereof for redemption or conversion on the applicable redemption date
or conversion date, as the case may be, on such date (or promptly following the
conversion date, in the case of conversion). Liquidated Damages shall accrue at
a rate per annum equal to (1) one-quarter of one percent (0.25%) for the first
90-day period from the Event Date and (2) one-half of one percent (0.50%)
thereafter of (i) the aggregate principal amount of such Notes or, without
duplication, (ii) in the case of Notes that have been converted into Underlying
Common Stock, the Applicable Conversion Price of such shares of Underlying
Common Stock, as the case may be, in each case determined as of the Business Day
immediately preceding the next Liquidated Damages Payment Date. Notwithstanding
the foregoing, no Liquidated Damages shall accrue as to any Registrable Security
from and after the earlier of (x) the date such security is no longer a
Registrable Security and (y) expiration of the Effectiveness Period. The rate of
accrual of Liquidated Damages with respect to any period shall not exceed the
rate provided for in this paragraph notwithstanding the occurrence of multiple
concurrent Events. Following the cure of all Events requiring the payment by the
Company of Liquidated Damages to the Holders of Registrable Securities pursuant
to this Section, the accrual of Liquidated Damages shall cease (without in any
way limiting the effect of any subsequent Event requiring the payment of
Liquidated Damages by the Company).
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The Trustee shall be entitled, on behalf of Holders of Notes, to seek
any available remedy for the enforcement of this Agreement, including for the
payment of any Liquidated Damages. Notwithstanding the foregoing, the parties
agree that the sole damages payable for a violation of the terms of this
Agreement with respect to which liquidated damages are expressly provided shall
be such liquidated damages. Notwithstanding the foregoing, nothing shall
preclude a Holder from pursuing or obtaining a specific performance with respect
to this Agreement.
All of the Company's obligations set forth in this Section 2(e) that
are outstanding with respect to any Registrable Security at the time such
security ceases to be a Registrable Security shall survive until such time as
all such obligations with respect to such security have been satisfied in full
(notwithstanding termination of this Agreement pursuant to Section 8(k)).
The parties hereto agree that the liquidated damages provided for in
this Section 2(e) constitutes a reasonable estimate of the damages that may be
incurred by Holders of Registrable Securities by reason of the failure of the
Shelf Registration Statement to be filed or declared effective or available for
effecting resales of Registrable Securities in accordance with the provisions
hereof.
Section 3. Registration Procedures. In connection with the registration
obligations of the Company under Section 2 hereof, the Company shall:
(a) Prepare and file with the SEC a Shelf Registration Statement or
Shelf Registration Statements on Form S-3 or any other appropriate form under
the Securities Act available for the sale of the Registrable Securities by the
Holders thereof in accordance with the intended method or methods of
distribution thereof, and use its reasonable best efforts to cause each such
Shelf Registration Statement to become effective and remain effective as
provided herein; provided that before filing any Shelf Registration Statement or
Prospectus or any amendments or supplements thereto with the SEC, the Company
shall furnish to the Purchasers copies of all such documents proposed to be
filed which documents (other than a prospectus supplement filed solely to update
the selling stockholder information in the Prospectus) will be subject to the
review of such counsel for a period of three (3) Business Days, and the Company
will not file the Shelf Registration Statement or Prospectus or any amendment or
supplement thereto (other than documents incorporated by reference) to which
such counsel shall reasonably object within three (3) Business Days after the
receipt thereof.
(b) Prepare and file with the SEC such amendments and post-effective
amendments to each Shelf Registration Statement as may be necessary to keep such
Shelf Registration Statement continuously effective until the expiration of the
Effectiveness Period; cause the related Prospectus to be supplemented by any
required Prospectus supplement, and as so supplemented to be filed pursuant to
Rule 424 (or any similar provisions then in force) under the Securities Act; and
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use its reasonable best efforts to comply with the provisions of the Securities
Act applicable to it with respect to the disposition of all securities covered
by such Shelf Registration Statement during the Effectiveness Period in
accordance with the intended methods of disposition by the sellers thereof set
forth in such Shelf Registration Statement as so amended or such Prospectus as
so supplemented.
(c) As promptly as practicable give notice to the Notice Holders and
the Purchasers (i) when any Prospectus, Prospectus supplement, Shelf
Registration Statement or post-effective amendment to a Shelf Registration
Statement has been filed with the SEC and, with respect to a Shelf Registration
Statement or any post-effective amendment, when the same has been declared
effective, (ii) of any request, following the effectiveness of the Initial Shelf
Registration Statement under the Securities Act, by the SEC or any other federal
or state governmental authority for amendments or supplements to any Shelf
Registration Statement or related Prospectus or for additional information,
(iii) of the issuance by the SEC or any other federal or state governmental
authority of any stop order suspending the effectiveness of any Shelf
Registration Statement or the initiation or threatening of any proceedings for
that purpose, (iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification or exemption from qualification
of any of the Registrable Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose, (v) after the
effective date of any Shelf Registration Statement filed pursuant to this
Agreement of the occurrence of (but not the nature of or details concerning) a
Material Event and (vi) of the determination by the Company that a
post-effective amendment to a Shelf Registration Statement will be filed with
the SEC, which notice may, at the discretion of the Company (or as required
pursuant to Section 3(i)), state that it constitutes a Suspension Notice, in
which event the provisions of Section 3(i) shall apply.
(d) Use its reasonable best efforts to prevent the issuance of, and, if
issued, to obtain the withdrawal of any order suspending the effectiveness of a
Shelf Registration Statement or the lifting of any suspension of the
qualification (or exemption from qualification) of any of the Registrable
Securities for sale in any jurisdiction in which they have been qualified for
sale, in either case at the earliest possible moment, and provide prompt notice
to each Notice Holder and the Purchasers of the withdrawal of any such order.
(e) If requested by the Purchasers or any Notice Holder, as promptly as
practicable incorporate in a Prospectus supplement or post-effective amendment
to a Shelf Registration Statement such information as the Purchasers or such
Notice Holder shall, on advice from counsel, determine to be required to be
included therein by applicable law and make any required filings of such
Prospectus supplement or such post-effective amendment; provided that the
Company shall not be required to take any actions under this Section 3(e) that,
on advice from counsel for the Company, the Company determines would not be in
compliance with applicable law.
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(f) As promptly as practicable furnish to each Notice Holder, counsel
for the Holders and for the Purchasers and the Purchasers, without charge, at
least one (1) conformed copy of the Shelf Registration Statement and any
amendment thereto, including financial statements but excluding schedules, all
documents incorporated or deemed to be incorporated therein by reference and all
exhibits, which obligation shall be deemed satisfied if such information is
available through ▇▇▇▇▇ or on or through the Company's website.
(g) During the Effectiveness Period, deliver to each Notice Holder and
the Purchasers, in connection with any sale of Registrable Securities pursuant
to a Shelf Registration Statement, without charge, as many copies of the
Prospectus or Prospectuses relating to such Registrable Securities (including
each preliminary prospectus) and any amendment or supplement thereto as such
Notice Holder and the Purchasers may reasonably request; and the Company hereby
consents (except during such periods that a Suspension Notice is outstanding and
has not been revoked) to the use of such Prospectus or each amendment or
supplement thereto by each Notice Holder, in connection with any offering and
sale of the Registrable Securities covered by such Prospectus or any amendment
or supplement thereto in the manner set forth therein.
(h) Prior to any public offering of the Registrable Securities pursuant
to the Shelf Registration Statement, use its reasonable best efforts to register
or qualify or cooperate with the Notice Holders in connection with the
registration or qualification (or exemption from such registration or
qualification) of such Registrable Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions within the United States as
any Notice Holder reasonably requests in writing (which request may be included
in the Notice and Questionnaire); and prior to any public offering of the
Registrable Securities pursuant to the Shelf Registration Statement, use its
reasonable best efforts to keep each such registration or qualification (or
exemption therefrom) effective during the Effectiveness Period in connection
with such Notice Holder's offer and sale of Registrable Securities pursuant to
such registration or qualification (or exemption therefrom) and do any and all
other acts or things reasonably necessary or advisable to enable the disposition
in such jurisdictions of such Registrable Securities in the manner set forth in
the relevant Shelf Registration Statement and the related Prospectus; provided
that the Company will not be required to (i) qualify as a foreign corporation or
as a dealer in securities in any jurisdiction where it would not otherwise be
required to qualify but for this Agreement or (ii) take any action that would
subject it to general service of process in suits or to taxation in any such
jurisdiction where it is not then so subject.
(i) Upon (A) the issuance by the SEC of a stop order suspending the
effectiveness of the Shelf Registration Statement or the initiation of
proceedings with respect to the Shelf Registration Statement under Section 8(d)
or 8(e) of the Securities Act, (B) the occurrence of any event or the existence
of any fact as a
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result of which any Shelf Registration Statement shall contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading, or
any Prospectus shall contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading, or
(C) the occurrence or existence of any pending corporate development (a
"Material Event") that, in the reasonable discretion of the Company, makes it
appropriate to suspend the availability of the Shelf Registration Statement and
the related Prospectus, (i) in the case of clause (B) or (C) above, subject to
the next sentence, as promptly as practicable, prepare and file, if necessary
pursuant to applicable law, a post-effective amendment to such Shelf
Registration Statement or a supplement to the related Prospectus or any document
incorporated therein by reference or file any other required document that would
be incorporated by reference into such Shelf Registration Statement and
Prospectus so that such Shelf Registration Statement does not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading, and
such Prospectus does not contain any untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading (it
being understood that the Company may rely on information provided by each
Notice Holder with respect to such Notice Holder), as thereafter delivered to
the purchasers of the Registrable Securities being sold thereunder, and, in the
case of a post-effective amendment to a Shelf Registration Statement, subject to
the next sentence, use its reasonable best efforts to cause it to be declared
effective as promptly as is practicable, and (ii) give notice to the Notice
Holders and counsel for the Holders and for the Purchasers (or, if applicable,
separate counsel for the Holders) that the availability of the Shelf
Registration Statement is suspended (a "Suspension Notice") and, upon receipt of
any Suspension Notice, each Notice Holder agrees not to sell any Registrable
Securities pursuant to such Shelf Registration Statement until such Notice
Holder's receipt of copies of the supplemented or amended Prospectus provided
for in clause (g) above, or until it is advised in writing by the Company that
the Prospectus may be used, and has received copies of any additional or
supplemental filings that are incorporated or deemed incorporated by reference
in such Prospectus. The Company will use its reasonable best efforts to ensure
that the use of the Prospectus may be resumed (x) in the case of clause (A)
above, as promptly as is practicable, (y) in the case of clause (B) above, as
soon as, in the reasonable judgment of the Company, the Shelf Registration
Statement does not contain any untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading and the Prospectus does not contain any untrue
statement of a material fact or omits to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, and (z) in the case of clause (C) above,
as soon as, in the reasonable discretion of the Company, such
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suspension is no longer appropriate. The period during which the availability of
the Shelf Registration Statement and any Prospectus may be suspended (the
"Suspension Period") without the Company incurring any obligation to pay
liquidated damages pursuant to Section 2(e) shall not exceed thirty (30) days in
any three (3) month period and ninety (90) days in any twelve (12) month period;
provided, however, that if the use of the Shelf Registration Statement or any
Prospectus is suspended by the Company pursuant to clause (C) above and the
subject Material Event relates to a previously undisclosed proposed or pending
material business transaction, the disclosure of which would impede the
Company's ability to consummate such transaction or cause the Company to violate
any non-disclosure agreement or confidentiality agreement in any contract
relating to such transaction, the Company may extend a Suspension Period from
thirty (30) days to forty-five (45) days.
(j) Make available for inspection during normal business hours by
representatives for the Notice Holders of such Registrable Securities, and any
investment banks, attorneys and accountants retained by such Notice Holders, all
relevant financial and other records and pertinent corporate documents and
properties of the Company and its subsidiaries, and cause the appropriate
officers, directors and employees of the Company and its subsidiaries to make
available for inspection during normal business hours all relevant information
reasonably requested by such representatives for the Notice Holders, or any such
investment banks, attorneys or accountants in connection with such disposition,
in each case as is customary for similar "due diligence" examinations; provided,
however, that such persons shall, at the Company's request, first agree in
writing with the Company that any information that is reasonably and in good
faith designated by the Company in writing as confidential at the time of
delivery of such information shall be kept confidential by such persons and
shall be used solely for the purposes of exercising rights under this Agreement,
unless (i) disclosure of such information is required by court or administrative
order or is necessary to respond to inquiries of regulatory authorities, (ii)
disclosure of such information is required by law (including any disclosure
requirements pursuant to federal securities laws in connection with the filing
of any Shelf Registration Statement or the use of any Prospectus referred to in
this Agreement), (iii) such information becomes generally available to the
public other than as a result of a disclosure or failure to safeguard by any
such person or (iv) such information becomes available to any such person from a
source other than the Company and such source is not bound by a confidentiality
agreement or is not otherwise under a duty of trust to the Company, and provided
that the foregoing inspection and information gathering shall, to the greatest
extent possible, be coordinated on behalf of all the Notice Holders.
(k) Cooperate with each Notice Holder to facilitate the timely
preparation and delivery of certificates representing Registrable Securities
sold pursuant to a Shelf Registration Statement, which certificates shall not
bear any restrictive legends, and cause such Registrable Securities to be
registered in such
12
names as such Notice Holder may request in writing at least three (3) Business
Days prior to any sale of such Registrable Securities.
(l) Provide the Trustee and the transfer agent for the Common Stock
with certificates for the Registrable Securities that are in a form eligible for
deposit with The Depository Trust Company.
(m) Comply with all applicable rules and regulations of the SEC and
make generally available to its securityholders earning statements (which need
not be audited) satisfying the provisions of Section 11(a) of the Securities Act
and Rule 158 thereunder (or any similar rule promulgated under the Securities
Act) no later than 45 days after the end of any 12-month period (or 90 days
after the end of any 12-month period if such period is a fiscal year) commencing
on the first day of the first fiscal quarter of the Company commencing after the
effective date of a Registration Statement, which statements shall cover said
12-month periods.
(n) Upon (i) the filing of the Initial Registration Statement and (ii)
the effectiveness of the Initial Registration Statement, announce the same, in
each case by press release to a nationally recognized wire service.
(o) Cause all shares of Common Stock issuable upon conversion of the
Securities to be reserved for listing on each securities exchange or quotation
system on which the Common Stock is then listed no later than the date the
applicable Shelf Registration Statement is declared effective and, shall cause
all Common Stock to be so listed when issued.
(p) Use its reasonable best efforts to take all other steps necessary
to effect the registration of the Registrable Securities covered by the Shelf
Registration Statement contemplated hereby.
(q) If the Registrable Securities are in certificated form, cooperate
with the Holders to facilitate the timely preparation and delivery of
certificates representing the Registrable Securities sold pursuant to any Shelf
Registration Statement free of any restrictive legends and, with respect to any
Notes, in such denominations permitted by the Indenture and registered in such
names as Holders may request at least two Business days prior to settlement of
sales of Registrable Securities pursuant to such Shelf Registration Statement.
Section 4. Holder's Obligations. Each Holder agrees, by acquisition of
the Registrable Securities, that no Holder shall be entitled to sell any of such
Registrable Securities pursuant to a Shelf Registration Statement or to receive
a Prospectus relating thereto, unless such Holder has furnished the Company with
a Notice and Questionnaire as required pursuant to Section 2(d) hereof
(including the information required to be included in such Notice and
Questionnaire) and the information set forth in the next sentence. Each Notice
Holder agrees promptly to furnish to the Company all information required to be
disclosed in order to make
13
the information previously furnished to the Company by such Notice Holder not
misleading and any other information regarding such Notice Holder and the
distribution of such Registrable Securities as the Company may from time to time
reasonably request. Any sale of any Registrable Securities by any Holder shall
constitute a representation and warranty by such Holder that the information
relating to such Holder and its plan of distribution is as set forth in the
Prospectus delivered by such Holder in connection with such disposition, that
such Prospectus does not as of the time of such sale contain any untrue
statement of a material fact relating to or provided by such Holder or its plan
of distribution and that such Prospectus does not as of the time of such sale
omit to state any material fact relating to or provided by such Holder or its
plan of distribution necessary in order to make the statements in such
Prospectus, in the light of the circumstances under which they were made, not
misleading.
Section 5. Registration Expenses. The Company shall bear all fees and
expenses incurred in connection with the performance by the Company of its
obligations under Section 2 and 3 of this Agreement whether or not any of the
Shelf Registration Statements are declared effective. Such fees and expenses
("Registration Expenses") shall include, without limitation, (i) all
registration and filing fees (including, without limitation, fees and expenses
(x) with respect to filings required to be made with the New York Stock
Exchange, and (y) of compliance with federal and state securities or Blue Sky
laws, (ii) printing expenses (including, without limitation, expenses of
printing certificates for Registrable Securities in a form eligible for deposit
with The Depository Trust Company), (iii) duplication and mailing expenses
relating to copies of any Shelf Registration Statement or Prospectus delivered
to any Holders hereunder, (iv) fees and disbursements of counsel for the Company
and the fees and disbursements of one counsel chosen by the Holders of a
majority of the then outstanding Underlying Common Stock constituting
Registrable Securities (with Holders of Notes deemed to be the Holders, for
purposes of this Section, of the number of outstanding shares of Underlying
Common Stock into which such Notes are or would be convertible, not including,
for this purpose only, any shares of Common Stock payable as a Make-Whole
Premium upon conversion of any Note) in connection with the Shelf Registration
Statement, and (v) fees and disbursements of the Trustee and its counsel and of
the registrar and transfer agent for the Common Stock. In addition, the Company
shall pay the internal expenses of the Company (including, without limitation,
all salaries and expenses of officers and employees performing legal or
accounting duties), the expense of any annual audit, the fees and expenses
incurred in connection with the listing by the Company of the Registrable
Securities on any securities exchange on which similar securities of the Company
are then listed and the fees and expenses of any person, including special
experts, retained by the Company.
Section 6. Indemnification; Contribution.
14
(a) The Company agrees to indemnify and hold harmless each Holder and
its directors, officers, employees, members, representatives and agents and each
person, if any, who controls any Holder within the meaning of either Section 15
of the Securities Act or Section 20 of the Exchange Act (each, a "Holder
Indemnified Party"), from and against any loss, damage, expense, liability or
claim (including the reasonable cost of investigation) which such Holder
Indemnified Party may incur under the Securities Act, the Exchange Act or
otherwise, insofar as such loss, damage, expense, liability or claim arises out
of or is based upon any untrue statement or alleged untrue statement of a
material fact contained in any Shelf Registration Statement or Prospectus or in
any amendment or supplement thereto or in any preliminary prospectus, or arises
out of or is based upon any omission or alleged omission to state a material
fact required to be stated in any Shelf Registration Statement or in any
amendment or supplement thereto or necessary to make the statements therein not
misleading, or arises out of or is based upon any omission or alleged omission
to state a material fact necessary in order to make the statements made in any
Prospectus or in any amendment or supplement thereto or in any preliminary
prospectus, in the light of the circumstances under which they were made, not
misleading, except insofar as any such loss, damage, expense, liability or claim
arises out of or is based upon any untrue statement or omission or alleged
untrue statement or omission of a material fact contained in, or omitted from,
and in conformity with information required to be included in any Shelf
Registration Statement or the related Prospectus pursuant the Securities Act
furnished in writing by or on behalf of any Holder to the Company; provided,
however, that as to any preliminary prospectus, this indemnity agreement shall
not inure to the benefit of any Holder Indemnified Party on account of any loss,
claim, damage, liability or action arising from the sale of the Registrable
Securities sold pursuant to the Shelf Registration Statement to any person by
such Holder Indemnified Party if (i) that Holder Indemnified Party failed to
send or give a copy of the Prospectus, as the same may be amended or
supplemented, to that person within the time required by the Securities Act
(other than as a result of a failure by the Company to timely deliver copies of
the Prospectus to such Holder Indemnified Party) and (ii) the untrue statement
or alleged untrue statement of a material fact or omission or alleged omission
to state a material fact in such preliminary prospectus was corrected in the
Prospectus or a supplement or amendment thereto, as the case may be.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend
and hold harmless the Company, and its directors, officers, employees, members,
representatives and agents and each person, if any, who controls the Company
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act (each, a "Company Indemnified Party") from and against any
loss, damage, expense, liability or claim (including the reasonable cost of
investigation) which such Company Indemnified Party may incur under the
Securities Act, the Exchange Act or otherwise, insofar as such loss, damage,
expense, liability or claim arises out of or is based upon any untrue statement
or
15
alleged untrue statement of a material fact contained in information furnished
in writing by or on behalf of such Holder to the Company required to be included
in any Shelf Registration Statement or the related Prospectus pursuant the
Securities Act, or arises out of or is based upon any omission or alleged
omission to state a material fact required to be stated in any Shelf
Registration Statement or in any amendment or supplement thereto or necessary to
make the statements therein not misleading, or arises out of or is based upon
any omission or alleged omission to state a material fact necessary in order to
make the statements in any Prospectus or in any amendment or supplement thereto
or in any preliminary prospectus, in the light of the circumstances under which
they were made, not misleading, in connection with such information; provided,
however, that no such Holder shall be liable for any claims hereunder in excess
of the amount of net proceeds received by such Holder from the sale of
Registrable Securities pursuant to such Shelf Registration Statement.
(c) If any action, suit or proceeding (each, a "Proceeding") is brought
against any person in respect of which indemnity may be sought pursuant to
either subsection (a) or (b) of this Section 6, such person (the "Indemnified
Party") shall promptly notify the person against whom such indemnity may be
sought (the "Indemnifying Party") in writing of the institution of such
Proceeding and the Indemnifying Party shall assume the defense of such
Proceeding; provided, however, that failure to so notify the Indemnifying Party
shall not relieve such Indemnifying Party from any liability hereunder to the
extent it is not materially prejudiced as a result thereof and in any event
shall not relieve it from any liability which it may otherwise have than on
account of this indemnity agreement. Such Indemnified Party shall have the right
to employ its own counsel, but the fees and expenses of such counsel shall be at
the expense of such Indemnified Party unless (i) the Indemnifying Party and the
Indemnified Party shall have mutually agreed to the contrary, (ii) the
Indemnifying Party has failed within a reasonable time after receipt of notice
to assume defense of a Proceeding to retain counsel reasonably satisfactory to
the Indemnified Party or (iii) the named parties in any such Proceeding
(including any impleaded parties) include both the Indemnifying Party and the
Indemnified Party, the Indemnifying Party proposes to have the same counsel
represent it and the Indemnified Party, and representation of both parties by
the same counsel would be inappropriate due to actual or potential differing
interests between them. It is understood that the Indemnifying Party shall not,
in connection with any Proceeding or related Proceeding in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) for all Indemnified Parties, and that all
such fees and expenses actually incurred shall be promptly reimbursed upon
delivery to the Indemnifying Party of reasonable documentation therefor setting
forth such expenses in reasonable detail. The Indemnifying Party shall not be
liable for any settlement of any Proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the Indemnifying Party agrees to indemnify and hold harmless any
Indemnified Party from and against any loss or liability by reason of such
16
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an Indemnified Party shall have requested the Indemnifying Party to reimburse
the Indemnified Party as contemplated by this paragraph, the Indemnifying Party
agrees that it shall be liable for any settlement of any Proceeding effected
without its consent if (i) such settlement is entered into more than 60 Business
Days after receipt by the Indemnifying Party of the aforesaid request, (ii) such
indemnifying party shall not have reimbursed the Indemnified Party in accordance
with such request prior to the date of such settlement and (iii) such
Indemnified Party shall have given such Indemnifying Party at least 30 days'
prior notice of its intention to settle. 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 a
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.
(d) If the indemnification provided for in this Section 6 is
unavailable to an Indemnified Party under subsections (a) and (b) of this
Section 6 in respect of any losses, damages, expenses, liabilities or claims
referred to therein, then each applicable Indemnifying Party, in lieu of
indemnifying such Indemnified Party, shall contribute to the amount paid or
payable by such Indemnified Party as a result of such losses, damages, expenses,
liabilities or claims (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Holders on the
other hand from the offering of the Registrable 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 on
the one hand and of the Holders on the other in connection with the statements
or omissions which resulted in such losses, damages, expenses, liabilities or
claims, as well as any other relevant equitable considerations. The relative
fault of the Company on the one hand and of the Holders on the other shall be
determined by reference to, among other things, whether the untrue statement or
alleged untrue statement of a material fact or omission or alleged omission
relates to information supplied by the Company or by the Holders and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The amount paid or payable by a
party as a result of the losses, damages, expenses, liabilities and claims
referred to above shall be deemed to include any reasonable legal or other fees
or expenses reasonably incurred by such party in connection with investigating
or defending any Proceeding.
(e) The Company and the Holders agree that it would not be just and
equitable if contribution pursuant to this Section 6 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in subsection (d) above. 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
17
guilty of such fraudulent misrepresentation. The Holders' respective obligations
to contribute pursuant to this Section 6 are several in proportion to the
respective amount of Registrable Securities they have sold pursuant to a Shelf
Registration Statement, and not joint. The remedies provided for in this Section
6 are not exclusive and shall not limit any rights or remedies which may
otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section
6 shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
any Holder or any person controlling any Holder, or the Company, or the
Company's officers or directors or any person controlling the Company and (iii)
the sale of any Registrable Security by any Holder.
Section 7. Information Requirements. (a) The Company covenants that, if
at any time before the end of the Effectiveness Period it is not subject to the
reporting requirements of the Exchange Act, it will cooperate with any Holder
and take such further action as any Holder may reasonably request in writing,
all to the extent required from time to time to enable such Holder to sell
Registrable Securities without registration under the Securities Act within the
limitation of the exemptions provided by Rule 144, Rule 144A, Regulation S and
Regulation D under the Securities Act and customarily taken in connection with
sales pursuant to such exemptions. Upon the written request of any Holder, the
Company shall deliver to such Holder a written statement as to whether it has
complied with such filing requirements, unless such a statement has been
included in the Company's most recent report filed with the SEC pursuant to
Section 13 or Section 15(d) of Exchange Act. Notwithstanding the foregoing,
nothing in this Section 7 shall be deemed to require the Company to register any
of its securities (other than the Common Stock) under any section of the
Exchange Act.
(b) The Company shall file the reports required to be filed by it under
the Exchange Act and shall comply with all other requirements set forth in the
instructions to Form S-1 or Form S-3, as the case may be, in order to allow the
Company to be eligible to file registration statements on Form S-1 or Form S-3.
Section 8. Miscellaneous.
(a) No Conflicting Agreements. The Company is not, as of the date
hereof, a party to, nor shall it, on or after the date of this Agreement, enter
into, any agreement with respect to its securities that conflicts with the
rights granted to the Holders of Registrable Securities in this Agreement. The
Company represents and warrants that the rights granted to the Holders of
Registrable Securities hereunder do not in any way conflict with the rights
granted to the holders of such Company's securities under any other agreements.
Notwithstanding the foregoing, the Holders acknowledge that the Company is
18
obligated, and may obligate itself from time to time in the future, to register
its securities for other holders.
(b) Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given, unless the Company has obtained the written consent of Holders of a
majority of the then outstanding Underlying Common Stock constituting
Registrable Securities (with Holders of Notes deemed to be the Holders, for
purposes of this Section, of the number of outstanding shares of Underlying
Common Stock into which such Notes are or would be convertible as of the date on
which such consent is requested excluding, for this purpose only, any shares of
Common Stock payable as a Make-Whole Premium upon conversion of any Note).
Notwithstanding the foregoing, a waiver or consent to depart from the provisions
hereof with respect to a matter that relates exclusively to the rights of
Holders of Registrable Securities whose securities are being sold pursuant to a
Shelf Registration Statement and that does not directly or indirectly affect the
rights of other Holders of Registrable Securities may be given by Holders of at
least a majority of the Registrable Securities being sold by such Holders
pursuant to such Shelf Registration Statement; provided that the provisions of
this sentence may not be amended, modified, or supplemented except in accordance
with the provisions of the immediately preceding sentence. Each Holder at the
time of any such amendment, modification, supplement, waiver or consent or
thereafter shall be bound by any such amendment, modification, supplement,
waiver or consent effected pursuant to this Section 8(b), whether or not any
notice, writing or marking indicating such amendment, modification, supplement,
waiver or consent appears on the Registrable Securities or is delivered to such
Holder.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, by telecopier, by
courier guaranteeing overnight delivery or by first-class mail, return receipt
requested, and shall be deemed given (i) when made, if made by hand delivery,
(ii) upon confirmation, if made by telecopier, (iii) one (1) Business Day after
being deposited with such courier, if made by overnight courier or (iv) on the
date indicated on the notice of receipt, if made by first-class mail, to the
parties as follows:
(x) if to a Holder, at the most current address given by such Holder to
the Company in the applicable Purchase Agreement or upon any transfer of the
Notes;
with a copy (for informational purposes only) to:
▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
(y) if to the Company, to:
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
or to such other address as such person may have furnished to the other persons
identified in this Section 8(c) in writing in accordance herewith.
(d) Approval of Holders. Whenever the consent or approval of Holders is
required hereunder, Notes held by the Company or its affiliates (as such term is
defined in Rule 405 under the Securities Act) shall not be counted in
determining whether such consent or approval was given by the Holders of such
required percentage.
(e) Successors and Assigns. Any person who purchases any Notes or
Registrable Securities from the Purchasers or any Holder shall be deemed, for
purposes of this Agreement, to be an assignee of the Purchasers or such Holder,
as the case may be. This Agreement shall inure to the benefit of and be binding
upon the successors and assigns of each of the parties and shall inure to the
benefit of and be binding upon each Holder. Nothing in this Agreement, express
or implied, is intended to confer upon any party other than the parties hereto
or their respective successors and assigns any rights, remedies, obligations or
liabilities under or by reason of this Agreement, except as expressly provided
by this Agreement.
(f) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be original and all of which taken together
shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES THEREOF.
(i) Severability. If any term, provision, covenant or restriction of
this Agreement is held to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth herein
shall remain in
20
full force and effect and shall in no way be affected, impaired or invalidated
thereby.
(j) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and is intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein and the registration rights
granted by the Company with respect to the Registrable Securities. Except as
provided in the Purchase Agreement, there are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein,
with respect to the registration rights granted by the Company with respect to
the Registrable Securities. This Agreement supersedes all prior agreements and
undertakings among the parties with respect to such registration rights.
(k) Termination. This Agreement and the obligations of the parties
hereunder shall terminate upon the end of the Effectiveness Period, except for
any liabilities or obligations under Section 4, 5 or 6 hereof and the
obligations to make payments of and provide for liquidated damages under Section
2(e) hereof to the extent such liquidated damages accrues prior to the end of
the Effectiveness Period, each of which shall remain in effect in accordance
with its terms.
21
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
INTERSTATE BAKERIES CORPORATION
By:
------------------------------------
Name:
Title:
The foregoing Registration Rights Agreement is hereby confirmed and accepted as
of the date first above written by each of the following:
PURCHASER
By:
----------------------------------
Name:
Title:
PURCHASER
By:
----------------------------------
Name:
Title:
PURCHASER
By:
----------------------------------
Name:
Title:
22
ANNEX A
INTERSTATE BAKERIES CORPORATION
FORM OF SELLING SECURITYHOLDER NOTICE AND QUESTIONNAIRE
To be named as a selling securityholder in the prospectus, beneficial owners
shall complete and deliver this Notice and Questionnaire within 20 business days
after the date of the written request therefore by the Company. Beneficial
owners that do not complete this Notice and Questionnaire and deliver it to the
Company within such 20 business day period will not be eligible to he named as
selling securityholders in the prospectus and therefore will not be permitted to
sell any Registrable Securities (as defined below) pursuant to the Shelf
Registration Statement (as defined below).
The undersigned beneficial owner of 6% Senior Subordinated Convertible Notes due
2014 (the "Notes") of Interstate Bakeries Corporation (the "Company" or
"Registrant") or common stock, $0.01 par value (the "common stock" or the
"Registrable Securities") of the Company understands that the Registrant has
filed or intends to file with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-1 or Form S-3 (the "Shelf
Registration Statement") for the registration and resale under Rule 415 of the
Securities Act of 1933, as amended (the "Securities Act"), of the Registrable
Securities, in accordance with the terns of the Registration Rights Agreement,
to be dated as of August __, 2004 (the "Registration Rights Agreement"), between
the Company and the purchasers named therein. A copy of the Registration Rights
Agreement is available from the Company upon request at the address set forth
below. All capitalized terms not otherwise defined herein shall have the meaning
ascribed thereto in the Registration Rights Agreement.
Each beneficial owner of Registrable Securities is entitled to the benefits of
the Registration Rights Agreement. In order to sell or otherwise dispose of any
Registrable Securities pursuant to the Shelf Registration Statement, a
beneficial owner of Registrable Securities generally will be required to be
named as a selling securityholder in the related prospectus, deliver a
prospectus to purchasers of Registrable Securities and be bound by those
provisions of the Registration Rights Agreement applicable to such beneficial
owner (including certain indemnification provisions, as described below).
Beneficial owners that do not complete this Notice and Questionnaire and deliver
it to the Company within the 20 business day period described in the first
paragraph of this Notice and Questionnaire will not be named as selling
securityholders in the prospectus and therefore will not be permitted to sell
any Registrable Securities pursuant to the Shelf Registration Statement.
Beneficial owners are encouraged to complete and timely deliver this Notice and
Questionnaire so that such beneficial owners may be named as selling
securityholders in the related prospectus at the time of effectiveness. Upon
receipt of a completed (if timely delivered) Notice and Questionnaire from a
beneficial owner following the effectiveness of the Shelf Registration
Statement, the Company will, as promptly as practicable but in any event within
five business days of such receipt, file such amendments to the Shelf
Registration Statement or supplements to the related prospectus as are necessary
to permit such holder to deliver such prospectus to purchasers of Registrable
Securities. The Company has agreed to pay liquidated damages pursuant to the
Registration Rights Agreement under certain circumstances as set forth therein.
A-1
Certain legal consequences arise from being named as a selling securityholder in
the Shelf Registration Statement and the related prospectus. Accordingly,
holders and beneficial owners of Registrable Securities are advised to consult
their own securities law counsel regarding the consequences of being named or
not being named as a selling securityholder in the Shelf Registration Statement
and the related prospectus.
NOTICE
The undersigned beneficial owner (the "Selling Securityholder") of Registrable
Securities hereby gives notice to the Company of its intention to sell or
otherwise dispose of Registrable Securities beneficially owned by it and listed
below in Item 3 (unless otherwise specified under such Item 3) pursuant to the
Shelf Registration Statement. The undersigned, by signing and returning this
Notice and Questionnaire, understands 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's directors and officers and each
person, if any, who controls the Company within the meaning of either Section 15
of the Securities Act or Section 20 of the 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.
If the Selling Securityholder transfers all or any portion of the Registrable
Securities listed in Item 3 below after the date on which such information is
provided to the Company, the Selling Securityholder agrees to notify the
transferee(s) at the time of the transfer of its rights and obligations under
this Notice and Questionnaire and the Registration Rights Agreement.
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 Registrable 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 Registrable Securities
listed in Item 3 below are held:
--------------------------------------------------------------
A-2
2. Address for Notices to Selling Securityholder:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Telephone:
----------------------------------------------------------------------
Fax:
----------------------------------------------------------------------
Contact Person:
-----------------------------------------------------------------
3. Beneficial Ownership of Registrable Securities:
(a) Type and Principal Amount of Registrable Securities
beneficially owned:
--------------------------------------------------------------
--------------------------------------------------------------
(b) CUSIP No(s). of such Registrable Securities beneficially
owned:
--------------------------------------------------------------
--------------------------------------------------------------
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 Registrable Securities listed above in Item 3.
(a) Type and Amount of Other Securities beneficially owned by the
Selling Securityholder:
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(b) CUSIP No(s). of such Other Securities beneficially owned:
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5. Relationships with the Company:
Except as set forth below, neither the undersigned nor any of its
affiliates, officers, directors or principal equity holders (owners of
5% of more of the equity securities of the undersigned) 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:
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6. Broker-Dealers and their Affiliates
(a) Is the Selling Securityholder a broker-dealer or an affiliate
of a broker-dealer:
Yes ____ No ____
If so, please answer the remaining question in this section.
(i) Please advise whether the notes were received by the
Selling Securityholder as compensation for investment
banking services or as investment shares, and if so
please describe the circumstances.
Note that in general we may be required to identify any registered
broker-dealer as an underwriter in the prospectus.
(ii) Except as set forth below, if the Selling
Securityholder is a registered broker-dealer, the
Selling Securityholder does not plan to make a market
in the Registrable Securities. If the Selling
Securityholder plans to make a market in the
Registrable Securities, please indicate whether the
Selling Securityholder plans to use the prospectus
relating to the Registrable Securities as a
market-making prospectus.
(b) Affiliation with Broker-Dealers
Is the Selling Securityholder an affiliate(1) of a registered
broker-dealer?
Yes ____ No ____
If so, please answer the remaining question in this section.
(i) Please describe the affiliation between the Selling
Securityholder and any registered broker-dealer.
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(1) An "affiliate" of a specified person or entity means a person or entity that
directly, or indirectly through one or more intermediaries, controls or is
controlled by, or is under common control with, the person or entity specified.
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(ii) If the notes were purchased by the Selling
Securityholder other than in the ordinary course of
business, please describe the circumstances.
(iii) Please advise whether the notes were received by the
Selling Securityholder as compensation for investment
banking services or as investment shares, and if so
please describe the circumstances.
(iv) If the Selling Securityholder, at the time of its
purchase of Registrable Securities, had any
agreements or understandings, directly or indirectly,
with any person to distribute the Registrable
Securities, please describe such agreements or
undertakings.
Note that if the Selling Securityholder is an affiliate of a
broker-dealer and did not purchase its notes in the ordinary course of
business or at the time of the purchase had any agreements or
understandings, directly or indirectly, to distribute the securities,
we may be required to identify the Selling Securityholder as an
underwriter in the prospectus.
(c) Beneficial Ownership by Natural Persons:
Is the Selling Securityholder is an entity, does any natural person
having voting or investing power over the Registrable Securities held
by the Selling Securityholder?(2)
If so, please state the person's or persons' name(s):
7. Beneficial Ownership by Natural Persons or by a Board or Committee
Is the Selling Securityholder a reporting entity with the Securities
and Exchange Commission?
If the Selling Securityholder is a majority owned subsidiary of a
reporting entity, identify the majority stockholder that is a reporting
entity.
Yes ____ No ____
If No, please answer the remaining questions in this section.
(i) Please name the natural person or person(s) having
voting and/or investment control over the Selling
Securityholder.(3)
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(2) Please answer "Yes" if any natural person, directly or indirectly, through
any contract, arrangement, understanding, relationship, or otherwise has or
shares: (a) voting power which includes the power to vote, or to direct the
voting of, such security; and/or, (b) investment power which includes the power
to dispose, or to direct the disposition of, the Registrable Securities held by
the Selling Securityholder.
(3) Please include any natural person that, directly or indirectly, through any
contract, arrangement, understanding, relationship, or otherwise has or shares:
(a) voting power which includes the power to vote, or to direct the voting of,
such security; and/or, (b) investment power which includes the power to dispose,
or to direct the disposition of, the Registrable Securities held by the Selling
Securityholder.
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(ii) If the voting and/or investment control over the
Selling Securityholder is held by board or committee,
please state the name of the natural person or
person(s) on such board or committee.
8. Plan of Distribution:
Except as set forth below, the undersigned (including its donees or
pledgees) intends to distribute the Registrable Securities listed above
in Item 3 pursuant to the Shelf Registration Statement only as follows
(if at all): Such Registrable Securities may be sold from time to time
directly by the undersigned or, alternatively, through underwriters,
broker-dealers or agents. If the Registrable Securities are sold
through underwriters, broker-dealers or agents, the Selling
Securityholder will be responsible for underwriting discounts or
commissions or agents' commissions. Such Registrable Securities may be
sold in one or more transactions at fixed 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 block transactions) (i) on any national
securities exchange or quotation service on which the Registrable
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
Registrable Securities or otherwise, the undersigned may enter into
hedging transactions with broker-dealers, which may in turn engage in
short sales of the Registrable Securities in the course of hedging
positions they assume. The undersigned may also sell Registrable
Securities short and deliver Registrable Securities to close out short
positions, or loan or pledge Registrable Securities to broker-dealers
that in turn may sell such securities.
State any exceptions here:
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Note: In no event will such method(s) of distribution take the form of an
underwritten offering of the Registrable Securities without the prior written
agreement of the Company.
The undersigned acknowledges 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 Registrable Securities pursuant to the
Registration Rights Agreement. 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 Securityholder 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
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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 to the address set forth below.
By signing below, the undersigned consents to the disclosure of the information
contained herein in its answers to Items 1 through 6 and the inclusion of such
information in the Shelf Registration Statement and the related prospectus. The
undersigned understands that such information will be relied upon by the Company
in connection with the preparation or amendment of the Shelf Registration
Statement and the related prospectus.
Once this Notice and Questionnaire is executed by the Selling Securityholder and
received by the Company, the terms of this Notice and Questionnaire, and the
representations and warranties contained herein, shall be binding on, 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 Registrable Securities beneficially owned by
such Selling Securityholder and listed in Item (3) above. This Agreement shall
be governed in all respects by the laws of 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.
Dated: Beneficial Owner:
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By:
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Name:
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Title:
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PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND
QUESTIONNAIRE TO INTERSTATE BAKERIES CORPORATION
Interstate Bakeries Corporation
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Attention: General Counsel
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