CENTRAL EUROPEAN MEDIA ENTERPRISES LTD. Registration Rights Agreement
Exhibit
4.1
3.50%
Senior Convertible Notes due 2013
March 10,
2008
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Brothers Inc.
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▇▇▇▇▇▇ of America
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▇▇▇▇▇▇ Securities Inc.
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▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇ of America
Deutsche
Bank Securities Inc.
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▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇ of America
BNP
Paribas
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ING Bank
N.V., London Branch
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Ladies
and Gentlemen:
Central
European Media Enterprises Ltd., a company organized under the laws of Bermuda
(the “Company”), proposes to issue and sell to you as initial purchasers (the
“Initial Purchasers”) upon the terms set forth in the Purchase Agreement (as
defined herein) its 3.50% Senior Convertible Notes due 2013 (the “Notes”). As an
inducement to the Initial Purchasers to enter into the Purchase Agreement and in
satisfaction of a condition to the obligations of the Initial Purchasers
thereunder, the Company agrees with the Initial Purchasers for the benefit of
Holders (as defined herein) from time to time of the Registrable Securities (as
defined herein) as follows:
1.
Definitions.
(a)
Capitalized terms used herein without definition shall have
the meanings ascribed to them in the Purchase Agreement. As used in
this Agreement, the following defined terms shall have the following
meanings:
“Additional Interest” has the
meaning assigned thereto in Section 7(a) hereof.
“Affiliate” of any specified
person means any other person which, directly or indirectly, is in control of,
is controlled by, or is under common control with such specified
person. For purposes of this definition, control of a person means
the power, direct or indirect, to direct or cause the direction of the
management and policies of such person whether by contract or otherwise; and the
terms “controlling” and “controlled” have meanings correlative to the
foregoing.
“Business Day” means each
Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which
banking institutions in the State of New York, Bermuda or London are authorized
or obligated by law or executive order to close.
“Class A Common Stock” means shares of
the Company's Class A common stock, par value $0.08 per share.
“Closing Date” means the date
of this Agreement.
“Commission” means the United
States Securities and Exchange Commission, or any other federal agency at the
time administering the Exchange Act or the Securities Act, whichever is the
relevant statute for the particular purpose.
“Company Website”
means, as of any date of determination, the principal website maintained by the
Company on the Internet, which is located at ▇▇▇▇://▇▇▇.▇▇▇▇-▇▇▇.▇▇▇ as of the
date hereof.
“DTC” means The Depository
Trust Company.
“Effectiveness Period” has
the meaning assigned thereto in Section 2(b)(i) hereof.
“Effective Time” means the
time at which the Commission declares the Shelf Registration Statement effective
or at which the Shelf Registration Statement otherwise becomes
effective.
“Electing Holder” has the
meaning assigned thereto in Section 3(a)(iii) hereof.
“Exchange Act” means the
United States Securities Exchange Act of 1934, as amended.
“Free Writing Prospectus”
means a free writing prospectus, as defined in Rule 405 under the Securities
Act.
“Holder” means any person that
is the record owner of Registrable Securities (and includes any person that has
a beneficial interest in any Registrable Security in book-entry
form).
“Indemnified Party” has the
meaning assigned thereto in Section 5(a) hereof.
“Indenture” means the
Indenture, dated as of March 10, 2008, among the Company, the Subsidiary
Guarantors and The Bank of New York as trustee and security trustee, as amended
and supplemented from time to time in accordance with its terms.
“Initial Purchasers” has the
meaning assigned thereto in preamble hereof.
“Issuer Free Writing
Prospectus” means an issuer free writing prospectus, as defined in Rule
433 under the Securities Act.
“Losses” has the meaning
assigned thereto in Section 5(a) hereof.
“Managing Underwriters” means
the investment banker or investment bankers and manager or managers that shall
administer an underwritten offering, if any, conducted pursuant to Section 6
hereof.
“NASD Rules” means the Rules
of the National Association of Securities Dealers, Inc., as amended from time to
time.
“Notice and Questionnaire”
means a Selling Securityholder Notice and Questionnaire substantially in the
form of Annex A to the Offering Memorandum dated March 4, 2008 relating to the
Notes.
“Permitted Free Writing
Prospectus” has the meaning assigned thereto in Section 9(a)
hereof.
“Person” means an individual,
partnership, corporation, trust, business, association or unincorporated
organization, or a government or agency or political subdivision
thereof.
“Prospectus” means the
prospectus (including, without limitation, any preliminary prospectus, any final
prospectus and any prospectus that discloses information previously omitted from
a prospectus filed as part of an effective registration statement in reliance
upon Rule 430A under the Securities Act) included in the Shelf Registration
Statement, as amended or supplemented by any prospectus supplement with respect
to the terms of the offering of any portion of the Registrable Securities
covered by the Shelf Registration Statement and by all other amendments and
supplements to such prospectus, including all material incorporated by reference
in such prospectus and all documents filed after the date of such prospectus by
the Company under the Exchange Act and incorporated by reference
therein.
“Purchase Agreement” means the
purchase agreement, dated as of March 4, 2008, between the Company and the
Initial Purchasers relating to the initial placement of the Notes.
“Registrable Securities” means
the shares of Class A Common Stock issuable upon conversion of the Notes issued
from time to time under the Indenture; provided, however, that a security ceases
to be a Registrable Security when it is no longer a Restricted
Security.
“Registration Default” has the
meaning assigned thereto in Section 7(a) hereof.
“Restricted Security” means
any share of Class A Common Stock issued or issuable upon conversion of any Note
except any share of Class A Common Stock that (i) is transferable by the Holders
thereof, other than Affiliates of the Company, immediately without volume,
manner of sale, filing or other restrictions pursuant to Rule 144 under the
Securities Act (or any successor provision thereto) or (ii) has been effectively
registered under the Shelf Registration Statement and sold pursuant thereto or
ceases to be outstanding (whether as a result of repurchase and cancellation or
otherwise); provided, however, that if the Company issues additional Notes
pursuant to Section 2.14 of the Indenture, in determining whether any share of
Class A Common Stock issued or issuable upon conversion of a Note is a
Restricted Security the date of issuance of the Security converted shall be
deemed to be the last date of issuance of any such additional
Notes. For the avoidance of doubt, under Rule 144 as in effect on the
date of this Agreement, the shares of Class A Common Stock issuable upon
conversion of a Note held by a non-Affiliate of the Company for more than one
year (including the holding period of any prior non-Affiliate Holder) are no
longer Restricted Securities.
“Rules and Regulations” means
the published rules and regulations of the Commission promulgated under the
Securities Act or the Exchange Act, as in effect at any relevant
time.
“Securities Act” means the
United States Securities Act of 1933, as amended.
“Shelf Registration” means a
registration effected pursuant to Section 2 hereof.
“Shelf Registration Statement”
means a “shelf” registration statement filed under the Securities Act providing
for the registration of, and the sale on a continuous or delayed basis by the
Holders of, all of the Registrable Securities pursuant to Rule 415 under the
Securities Act and/or any similar rule that may be adopted by the Commission,
filed by the Company pursuant to the provisions of Section 2 of this Agreement,
including the Prospectus contained therein, any amendments and supplements to
such registration statement, including post-effective amendments, and all
exhibits and all material incorporated by reference in such registration
statement.
“Subsidiary Guarantors” means
Central European Media Enterprises N.V. and CME Media Enterprises
B.V.
“Suspension Period” has the
meaning assigned thereto in Section 2(c) hereof.
The term
“underwriter” means any
underwriter of Registrable Securities in connection with an offering thereof
under a Shelf Registration Statement.
2.
Shelf Registration.
(a)
The Company shall, no later than 120 days following the
Closing Date, file with the Commission, a Shelf Registration Statement on such
form as the Company deems appropriate covering resales by the Electing Holders
of the Registrable Securities, which shall be an automatic shelf registration
statement if the Company is then eligible to use an automatic shelf registration
statement, and, thereafter, shall use its reasonable best efforts (if the
Company is not eligible to use an automatic shelf registration statement at the
time of filing) to cause such Shelf Registration Statement to become effective
under the Securities Act as promptly as practicable but in no event later than
180 days following the Closing Date; provided, however, (i) that
no Holder shall be entitled to be named as a selling securityholder in the Shelf
Registration Statement or to use the Prospectus forming a part thereof or any
related Issuer Free Writing Prospectus for resales of Registrable Securities
unless such Holder is an Electing Holder and (ii) that in no event shall such
method of distribution take the form of an underwritten offering pursuant to
Section 6 hereof without the prior written agreement of the
Company.
(b)
The Company shall use its reasonable best efforts:
(i)
to keep the Shelf Registration Statement continuously
effective, supplemented and amended as required by the provisions of Section
3(j) hereto, in order to permit the Prospectus forming a part thereof and any
related Issuer Free Writing Prospectus to be usable by Electing Holders until
the earliest date upon which no share of Class A Common Stock issued or issuable
upon conversion thereof is a Restricted Security (such period being referred to
herein as the “Effectiveness Period”);
(ii) after
the Effective Time of the Shelf Registration Statement, promptly upon the
request of any Holder of Registrable Securities that is not then an Electing
Holder, to take any action reasonably necessary, pursuant to the procedures set
forth in Section 3(a)(ii) hereof, to enable such Holder to use the Prospectus
forming a part thereof and any related Issuer Free Writing Prospectus for
resales of Registrable Securities, including, without limitation, any action
necessary to identify such Holder as a selling securityholder in the Shelf
Registration Statement; provided, however, that nothing in this Section 2(b)(ii)
shall relieve such Holder of the obligation to return a completed and signed
Notice and Questionnaire to the Company in accordance with Section 3(a)(ii)
hereof; and
(iii) if
at any time the Notes, pursuant to Article 10 of the Indenture, are convertible
into securities other than Class A Common Stock, to cause, or to cause any
successor under the Indenture to cause, such securities to be included in the
Shelf Registration Statement no later than the date on which the Notes may then
be convertible into such securities.
The
Company shall be deemed not to have used its reasonable best efforts to keep the
Shelf Registration Statement effective during the Effectiveness Period if the
Company voluntarily takes any action that would result in Holders of Registrable
Securities covered thereby not being able to offer and sell any of such
Registrable Securities during that period, unless such action is (A) required by
applicable law and the Company thereafter promptly complies with the
requirements of Section 3(j) or (B) permitted pursuant to Section
2(c).
(c)
The Company may suspend the use of the Prospectus for a period not
to exceed an aggregate of 90 days in any 360-day period (each, a “Suspension
Period”), if the Board of Directors 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 the acquisition or divestiture of
assets, pending corporate developments and similar events, it is in the best
interests of the Company to suspend such use, and prior to suspending such use
the Company provides the Electing Holders with written notice of such
suspension, which notice shall not specify the nature of the event giving rise
to such suspension; provided, that the Company
may extend such Suspension Periods for an additional 30 days (such that the
aggregate of days in all Suspension Periods within the relevant 360-day period
does not exceed 120 days) if the Board of Directors of the Company shall have
determined in good faith that the disclosure relates to a previously undisclosed
proposed or pending material business transaction and that such disclosure would
impede the Company’s ability to consummate such transaction.
3.
Registration Procedures. In
connection with the Shelf Registration Statement, the following provisions shall
apply:
(a) (i)
Not less than 30 days prior to the Effective Time of the Shelf Registration
Statement, the Company shall mail the Notice and Questionnaire to the Holders of
Registrable Securities. Holders of Registrable Securities shall have
at least 20 days from the date on which the Notice and Questionnaire is first
mailed to such Holders to return a completed and signed Notice and Questionnaire
to the Company. The Company shall take action to name each Holder that is a
Electing Holder as of the date that is 10 days prior to the effectiveness of the
Shelf Registration Statement as a selling securityholder in the Shelf
Registration Statement at the time of its effectiveness so that such Holder is
permitted to deliver the Prospectus forming a part thereof as of such time to
purchasers of such Holder’s Registrable Securities in accordance with applicable
law. The Company shall not be required to take any action to name any Holder as
a selling securityholder in the Shelf Registration Statement or to enable any
Holder to use the Prospectus forming a part thereof for resales of Registrable
Securities unless such Holder has returned a completed and signed Notice and
Questionnaire to the Company by the deadline set forth herein prior to the
Effective Time or after the Effective Time as specified in Section
3(a)(ii).
(ii)
After the Effective Time of the Shelf Registration Statement, the
Company shall, upon the request of any Holder of Registrable Securities that is
not then an Electing Holder, promptly send a Notice and Questionnaire to such
Holder. From and after the Effective Time of the Shelf Registration
Statement, the Company shall (A) as promptly as is practicable after the date a
completed and signed Notice and Questionnaire is delivered to the Company, and
in any event within 20 Business Days after such date, prepare and file with the
Commission (x) a supplement to the Prospectus or, if required by applicable law,
a post-effective amendment to the Shelf Registration Statement and (y) any other
document required by applicable law, so that the Holder delivering such Notice
and Questionnaire is named as a selling securityholder in the Shelf Registration
Statement and is permitted to deliver the Prospectus to purchasers of such
Holder’s Registrable Securities in accordance with applicable law, and (B) 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 become effective under the Securities Act as promptly as is
practicable; provided,
however, that if a post-effective amendment to the Shelf Registration
Statement is required, the Company shall not be obligated to file more than one
amendment for all such Holders in any one fiscal quarter unless the number of
shares of the Class A Common Stock held by such Holders (or issuable to such
Holders upon conversion of the Notes) requested to be included in such amendment
by all such Holders exceeds 100,000 shares; provided, further, that if a
Notice and Questionnaire is delivered to the Company during a Suspension Period,
the Company shall not be obligated to take the actions set forth in this clause
(ii) until the termination of such Suspension Period; and provided, further, that any
supplements or amendments that solely list an additional Electing Holder need
not be submitted for prior review of counsel to Electing Holders under Section
3(b).
(iii) The
term “Electing Holder” shall mean any Holder of Registrable Securities that has
returned a completed and signed Notice and Questionnaire to the Company in
accordance with Section 3(a)(i) or 3(a)(ii) hereof.
(b) The
Company shall furnish to one counsel for the Electing Holders (as specified in
Section 4) a copy of the Shelf Registration Statement initially filed with the
Commission, and shall furnish to Electing Holders upon request, prior to the
filing thereof with the Commission, copies of each amendment thereto, each
amendment or supplement, if any, to the Prospectus included therein, and any
related Issuer Free Writing Prospectus and shall use its reasonable best efforts
to reflect in each such document, at the Effective Time or when so filed with
the Commission, as the case may be, such comments as such Holders and their
counsel reasonably may propose.
(c) The
Company shall promptly take such action as may be necessary so that (i) each of
the Shelf Registration Statement and any amendment thereto, the Prospectus
forming a part thereof and any amendment or supplement thereto and any related
Issuer Free Writing Prospectus (and each report or other document incorporated
therein by reference in each case) complies in all material respects with the
Securities Act and the Exchange Act and the respective rules and regulations
thereunder, (ii) each of the Shelf Registration Statement and any amendment
thereto does not, when it becomes effective, contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading and (iii) each of the
Prospectus forming a part of the Shelf Registration Statement, any amendment or
supplement to such Prospectus, and any related Issuer Free Writing Prospectus
does not at any time during the Effectiveness Period include an untrue statement
of a material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading.
(d) The
Company shall promptly advise each Electing Holder:
(i)
when a Shelf Registration Statement and any amendment thereto has
been filed with the Commission and when a Shelf Registration Statement or any
post-effective amendment thereto has become effective. The Company will issue a
press release containing this information and make this information available on
the Company Website;
(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 such
purpose;
(iv) of
the receipt by the Company of any notification with respect to the suspension of
the qualification of the Registrable Securities included in the Shelf
Registration Statement for sale in any jurisdiction or the initiation of any
proceeding for such purpose; and
(v) upon
the happening of any event or the existence of any state of facts that requires
the making of any changes in the Shelf Registration Statement or the Prospectus
included therein or any related Issuer Free Writing Prospectus so that, as of
such date, such Shelf Registration Statement, Prospectus and any such Issuer
Free Writing Prospectus do not contain an untrue statement of a material fact
and do not omit to state a material fact required to be stated therein or
necessary to make the statements therein (in the case of the Prospectus and any
such Issuer Free Writing Prospectus, in light of the circumstances under which
they were made) not misleading, of the suspension of the use of the Prospectus
or Issuer Free Writing Prospectus until the requisite changes have been made
(which notice shall not specify the nature of the event giving rise to such
suspension) and of the commencement of a Suspension Period.
(e) The
Company shall use its reasonable best efforts to prevent the issuance, and if
issued to obtain the withdrawal at the earliest possible time, of any order
suspending the effectiveness of the Shelf Registration Statement.
(f)
The Company shall furnish to each Electing Holder, upon request,
without charge, at least one copy of the Shelf Registration Statement and all
post-effective amendments, including any financial statements and schedules
included therein.
(g) The
Company shall, during the Effectiveness Period, deliver to each Electing Holder,
without charge, as many copies of the Prospectus (including each preliminary
Prospectus) included in the Shelf Registration Statement, any related Issuer
Free Writing Prospectus, and, in each case, any amendment or supplement thereto
as such Electing Holder may reasonably request; and the Company consents (except
during a Suspension Period or during the continuance of any event or the
existence of any state of facts described in Sections 3(d)(iii) and (iv) above)
to the use of the Prospectus, any related Issuer Free Writing Prospectus and, in
each case, any amendment or supplement thereto by each of the Electing Holders
in connection with the offering and sale of the Registrable Securities covered
by the Prospectus and any related Issuer Free Writing Prospectus and, in each
case, any amendment or supplement thereto during the Effectiveness
Period.
(h) Prior
to any offering of Registrable Securities pursuant to the Shelf Registration
Statement, the Company shall (i) register or qualify or cooperate with the
Electing Holders and their counsel in connection with the 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 Electing Holder may reasonably request, (ii) keep such registrations or
qualifications in effect and comply with such laws so as to permit the
continuance of offers and sales in such jurisdictions for so long as may be
necessary to enable any Electing Holder or underwriter, if any, to complete its
distribution of Registrable Securities pursuant to the Shelf Registration
Statement, and (iii) take any and all other actions necessary or advisable to
enable the disposition in such jurisdictions of such Registrable Securities;
provided, however, that in no event
shall the Company be obligated to (A) qualify as a foreign corporation or as a
dealer in securities in any jurisdiction where it would not otherwise be
required to so qualify but for this Section 3(h) or (B) file any general consent
to service of process in any jurisdiction where it is not, as of the hereof
subject to such service or subject itself to taxation in any jurisdiction where
it is not as of the date hereof so subject.
(i)
Unless any Registrable Securities shall be in
book-entry only form, the Company shall cooperate with the Electing Holders to
facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold pursuant to the Shelf Registration Statement,
which certificates, if so required by any securities exchange upon which any
Registrable Securities are listed, shall be penned, lithographed or engraved, or
produced by any combination of such methods, on steel engraved borders, and
which certificates shall be free of any restrictive legends and in such
permitted denominations and registered in such names as Electing Holders may
request in connection with the sale of Registrable Securities pursuant to the
Shelf Registration Statement.
(j)
Upon the happening of any event or the existence of any state of
facts that requires the making of any changes in the Shelf Registration
Statement or the Prospectus included therein or any related Issuer Free Writing
Prospectus so that, as of such date, such Shelf Registration Statement,
Prospectus and any such Issuer Free Writing Prospectus do not contain an untrue
statement of a material fact and do not omit to state a material fact required
to be stated therein or necessary to make the statements therein (in the case of
the Prospectus and any such Issuer Free Writing Prospectus, in light of the
circumstances under which they were made) not misleading, subject to Section
2(c) hereof, the Company shall promptly prepare, file (and have become
effective) a post-effective amendment to any Shelf Registration Statement or an
amendment or supplement to the related Prospectus included therein or file any
other document with the Commission so that, as thereafter delivered to
purchasers of the Registrable Securities, the Prospectus and any related Issuer
Free Writing Prospectus will not include an untrue statement of a material fact
or 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. If the Company notifies the Electing Holders of a
Suspension Period, the Electing Holder shall suspend the use of the Prospectus
and any related Issuer Free Writing Prospectus until the requisite changes to
the Prospectus or the Issuer Free Writing Prospectus have been
made.
(k)
Not later than the Effective Time of the
Shelf Registration Statement, the Company shall provide a CUSIP number for
Securities that cease to be Restricted Securities.
(l)
The Company shall use its reasonable best efforts to comply
with all applicable Rules and Regulations, and to make generally available to
its securityholders as soon as practicable after the effective date (as defined
in Rule 158(c) under the Securities Act) of the Shelf Registration Statement,
and in any event no later than the due date by which the Company is required
pursuant to the Exchange Act (subject to any applicable extensions under Rule
12b25), to file reports with the Commission in respect of such period, an
earnings statement of the Company and its subsidiaries for the 12 month period
beginning with the first month of the Company’s first fiscal quarter commencing
after the effective date of the Shelf Registration Statement, complying with
Section 11(a) of the Securities Act and the rules and regulations of the
Commission thereunder (including, at the option of the Company, Rule
158).
(m) [Reserved];
(n) In
the event of an underwritten offering conducted pursuant to Section 6 hereof to
which the Company has agreed, the Company shall, if requested, promptly include
or incorporate in a Prospectus supplement or post-effective amendment to the
Shelf Registration Statement such information as the Managing Underwriters and
the Company reasonably agree should be included therein and shall make all
required filings of such Prospectus supplement or post-effective amendment as
soon as practicable after it is notified of the matters to be included or
incorporated in such Prospectus supplement or post-effective
amendment.
(o) The
Company shall enter into such customary agreements (including an underwriting
agreement in customary form in the event of an underwritten offering conducted
pursuant to Section 6 hereof to which the Company has agreed) and take all other
appropriate action in order to expedite and facilitate the registration and
disposition of the Registrable Securities, and in connection therewith, if an
underwriting agreement is entered into, cause the same to contain
indemnification provisions and procedures substantially identical to those set
forth in Section 5 hereof with respect to all parties to be indemnified pursuant
to Section 5 hereof.
(p) The
Company shall:
(i)
(A) subject to the provisions of this Section 3(p)(i), make
reasonably available for inspection during normal business hours by the any
underwriter participating in any disposition pursuant to the Shelf Registration
Statement, and any attorney, accountant or other agent retained by any such
underwriter all relevant financial and other records, pertinent corporate
documents and properties of the Company and its subsidiaries, and (B) cause the
Company’s officers, directors and employees to supply all information reasonably
requested by any such underwriter, attorney, accountant or agent in connection
with the Shelf Registration Statement, in each case, as is customary for similar
due diligence examinations; provided, however, that all records,
information and documents that are designated by the Company, in good faith, as
confidential shall be kept confidential by any such underwriter, attorney,
accountant or agent, unless such disclosure is made in connection with a court
proceeding or required by law, or such records, information or documents become
available to the public generally or through a third party without an
accompanying obligation of confidentiality; and provided, further, that, such
inspection and information gathering shall be coordinated on behalf of the other
parties entitled thereto by one counsel designated by and on behalf of the other
parties;
(ii)
in connection with any underwritten offering
conducted pursuant to Section 6 hereof to which the Company has agreed, make
such representations and warranties to the Electing Holders participating in
such underwritten offering and to the Managing Underwriters, in form, substance
and scope as are customarily made by the Company to underwriters in primary
underwritten offerings of equity and convertible debt securities and covering
matters including, but not limited to, those set forth in the Purchase
Agreement;
(iii) in
connection with any underwritten offering conducted pursuant to Section 6 hereof
to which the Company has agreed, obtain opinions of counsel to the Company
(which opinions (in form, scope and substance) and counsel shall be reasonably
satisfactory to the Managing Underwriters) addressed to each Electing Holder
participating in such underwritten offering and the underwriters, covering such
matters as are customarily covered in opinions requested in underwritten
offerings of equity and such other matters as may be reasonably requested by
such Electing Holders and underwriters (it being agreed that the matters to be
covered by such opinions shall include, without limitation, as of the date of
the opinion and as of the Effective Time of the Shelf Registration Statement or
most recent post-effective amendment thereto, as the case may be, the absence
from the Shelf Registration Statement, the Prospectus and any related Issuer
Free Writing Prospectus, in each case, including the documents incorporated by
reference therein, of an untrue statement of a material fact or the omission of
a material fact required to be stated therein or necessary to make the
statements therein (in the case of the Prospectus and any such Issuer Free
Writing Prospectus, in light of the circumstances under which they were made)
not misleading);
(iv) in
connection with any underwritten offering conducted pursuant to Section 6 hereof
to which the Company has agreed, obtain “cold comfort” letters and updates
thereof from the independent public accountants of the Company (and, if
necessary, from the independent public accountants of any subsidiary of the
Company or of any business acquired by the Company for which financial
statements and financial data are, or are required to be, included in the Shelf
Registration Statement), addressed to each Electing Holder participating in such
underwritten offering (if such Electing Holder has provided such letter,
representations or documentation, if any, required by the accountants for such
“cold comfort” letter to be so addressed) and the underwriters, in customary
form and covering matters of the type customarily covered in “cold comfort”
letters in connection with primary underwritten offerings;
(v) in
connection with any underwritten offering conducted pursuant to Section 6 hereof
to which the Company has agreed, deliver such documents and certificates as are
customary and may be reasonably requested by counsel to the Electing Holders
participating in such underwritten offering and the Managing Underwriters, if
any, including, without limitation, certificates to evidence compliance with
Section 3(j) hereof and with any conditions contained in the underwriting
agreement or other agreements entered into by the Company.
(q) The
Company will use its reasonable best efforts to cause the Class A Common Stock
issuable upon conversion of the Notes to be listed on the Nasdaq Global Select
Market or other stock exchange or trading system on which the Class A Common
Stock primarily trades on or prior to the Effective Time of the Shelf
Registration Statement hereunder.
(r)
In the event that any broker-dealer registered under the
Exchange Act shall be an “affiliate” (as defined in Rule 2720(b)(1) of the NASD
Rules (or any successor provision thereto)) of the Company or has a “conflict of
interest” (as defined in Rule 2720(b)(7) of the NASD Rules (or any successor
provision thereto)) and such broker-dealer shall underwrite, participate as a
member of an underwriting syndicate or selling group or assist in the
distribution of any Registrable Securities covered by the Shelf Registration
Statement, whether as a Holder of such Registrable Securities or as an
underwriter, a placement or sales agent or a broker or dealer in respect
thereof, or otherwise, the Company shall assist such broker-dealer in complying
with the requirements of the NASD Rules, including, without limitation, by (A)
engaging a “qualified independent underwriter” (as defined in Rule 2720(b)(15)
of the NASD Rules (or any successor provision thereto)) to participate in the
preparation of the registration statement relating to such Registrable
Securities, to exercise usual standards of due diligence in respect thereto and
to recommend the public offering price of such Registrable Securities, (B)
indemnifying such qualified independent underwriter to the extent of the
indemnification of underwriters provided in Section 5 hereof, and (C) providing
such information to such broker-dealer as may be required in order for such
broker-dealer to comply with the requirements of the NASD Rules.
(s) The
Company shall use its reasonable best efforts to take all other steps necessary
to effect the registration, offering and sale of the Registrable Securities
covered by the Shelf Registration Statement contemplated hereby.
4.
Registration
Expenses. The Company agrees to bear and to pay or cause to be paid
promptly upon request being made therefor all expenses incident to the Company's
performance of or compliance with this Agreement, including, but not limited to,
(a) all Commission and any NASD registration and filing fees and expenses, (b)
all fees and expenses in connection with the qualification of the Registrable
Securities for offering and sale under the state securities and blue sky laws
referred to in Section 3(h), including reasonable fees and disbursements of one
counsel for the placement agent or underwriters, if any, in connection with such
qualifications, (c) all expenses relating to the preparation, printing,
distribution and reproduction of the Shelf Registration Statement, the related
Prospectus and each amendment or supplement to each of the foregoing, the
certificates representing the Notes and all other documents relating hereto, (d)
fees and expenses of the registrar and transfer agent for the Class A Common
Stock and (e) fees, disbursements and expenses of counsel and independent
certified public accountants of the Company (including the expenses of any
opinions required by or incident to such performance and compliance)
(collectively, the “Registration Expenses”). To the extent that any
Registration Expenses are incurred, assumed or paid by any Holder of Registrable
Securities or any placement agent therefor, the Company shall reimburse such
Person for the full amount of the Registration Expenses so incurred, assumed or
paid promptly after receipt of a documented request therefor. Notwithstanding
the foregoing, the Holders of the Registrable Securities being registered shall
pay all placement agent fees and commissions and transfer taxes, if any,
attributable to the sale of such Registrable Securities. The counsel referred to
in clause (b) of the first sentence of this Section 4 shall be selected by the
Company (unless reasonably objected to by the Electing Holders who own a
majority of the number of the Registrable Securities being registered (the
“Majority Holders”), in which case the Majority Holders shall select such
counsel for the Holders).
5.
Indemnification and Contribution.
(a)
The Company shall indemnify and hold harmless (i) the Initial
Purchasers, (ii) each Holder, (iii) each person, if any, who controls (within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act) any of the foregoing (any of the persons referred to in this
clause (iii) being hereinafter referred to as a “controlling person”) and (iv)
the respective officers, directors, partners, employees, representatives and
agents of the Initial Purchasers, each Holder and each controlling person (any
person referred to in clause (i), (ii), (iii) or (iv), an “Indemnified Party”),
from and against all losses, claims, damages and liabilities, joint or several,
and any actions in respect thereof (including, but not limited to, any loss,
claim, damage, liability or action relating to resales of the Restricted
Securities), to which such Indemnified Party may become subject (“Losses”),
insofar as any such Losses arises out of, or are based upon (A) any untrue
statement or alleged untrue statement of a material fact contained in the Shelf
Registration Statement, the Prospectus, any Issuer Free Writing Prospectus or
any blue sky application or other document prepared or executed by the Company
(or based upon any written information furnished by the Company) specifically
for the purpose of qualifying any or all of the Restricted Securities under the
securities laws of any state or other jurisdiction (any such application,
document or information being hereinafter called a “Blue Sky Application”) or
any amendment or supplement to any of the foregoing or (B) the omission or
alleged omission to state therein any material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however, that the Company
shall not be liable in any such case to the extent that any such losses arises
out of, or is based upon, any untrue statement or alleged untrue statement or
omission or alleged omission made in the Shelf Registration Statement, any
Prospectus, Issuer Free Writing Prospectus or Blue Sky Application or amendment
or supplement thereto in reliance upon and in conformity with written
information furnished to the Company by or on behalf of such Holder specifically
for use therein.
(b) Each
Holder, severally and not jointly, shall indemnify and hold harmless the
Company, the Initial Purchasers and the other selling Holders, the Company’s
officers, directors and employees and each controlling person of the foregoing
to the same extent as the indemnity set forth in Section 5(a) above, but only
with respect to any Losses that arises out of, or are based upon, any untrue
statement or alleged untrue statement or omission or alleged omission made in
reliance upon and in conformity with written information relating to such Holder
furnished to the Company by or on behalf of such Holder (or its related
Indemnified Party) specifically for use in the Shelf Registration Statement, the
Prospectus, any Issuer Free Writing Prospectus and any Blue Sky Application and
shall reimburse each Indemnified Party promptly upon demand for any legal or
other expenses reasonably incurred by such Indemnified Party in connection with
investigating or defending or preparing to defend against any such Losses as
such expenses are incurred; provided, that in no event
shall the liability of such Holder hereunder be greater in amount than the
dollar amount of the net proceeds received by such Holder upon the sale,
pursuant to the Shelf Registration Statement, of the Restricted Securities
giving rise to such indemnification obligation.
(c) Promptly
after receipt by an Indemnified Party under this Section 5 of notice of any
claim or the commencement of any action, the Indemnified Party shall, if a claim
in respect thereof is to be made against the indemnifying party under this
Section 5, notify the indemnifying party in writing of the claim or the
commencement of that action; provided, however, that the failure to
notify the indemnifying party shall not relieve it from any liability that it
may have to an Indemnified Party otherwise than under this Section
5. If any such claim or action shall be brought against an
Indemnified Party, and such Indemnified Party shall notify the indemnifying
party thereof, the indemnifying party shall be entitled to participate therein
and, to the extent that it wishes, jointly with any other similarly notified
indemnifying party, to assume the defense thereof with counsel reasonably
satisfactory to the Indemnified Party. After notice from the indemnifying party
to the Indemnified Party of its election to assume the defense of such claim or
action, the indemnifying party shall not be liable to the Indemnified Party
under this Section 5 for any legal or other expenses subsequently incurred by
the Indemnified Party in connection with the defense thereof other than
reasonable costs of investigation; provided, however, that an
indemnified party shall have the right to employ its own counsel in any such
action, but the fees, expenses and other charges of such counsel for the
indemnified party will be at the expense of such indemnified party unless (i)
the Company and such Indemnified Parties shall have so mutually agreed in
writing; (ii) the Company has failed within a reasonable time to retain counsel
reasonably satisfactory to such Indemnified Parties; (iii) such Indemnified
Parties and their directors, officers, employees and controlling persons shall
have reasonably concluded, based on the advice of counsel, that there may be
legal defenses available to them that are different from or in addition to those
available to the Company; or (iv) the named parties in any such proceeding
(including any impleaded parties) include both the Indemnified Parties or their
directors, officers, employees or controlling persons, on the one hand, and the
Company, on the other hand, and representation of both sets of parties by the
same counsel would present a conflict due to actual or potential differing
interests between them, and, in such instance, the fees and expenses of a single
separate counsel (in addition to any local counsel) shall be paid by the
Company. No indemnifying party shall (1) without the prior written
consent of the Indemnified Parties (which consent shall not be unreasonably
withheld, conditioned or delayed) settle or compromise or consent to the entry
of any judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the Indemnified Parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each Indemnified Party, in form and
substance reasonably acceptable to each Indemnified Party, from all liability
arising out of such claim, action, suit or proceeding and does not include any
statement as to or any admission of fault, culpability or a failure to act by or
on behalf of any Indemnified Party or (2) be liable for any settlement of any
such action effected without its written consent (which consent shall not be
unreasonably withheld, conditioned or delayed), but if settled with the consent
of the indemnifying party or if there be a final judgment of the plaintiff in
any such action, the indemnifying party agrees to indemnify and hold harmless
any Indemnified Party from and against any loss or liability by reason of such
settlement or judgment.
(d) If
the indemnification provided for in this Section 5 shall for any reason be
unavailable or insufficient to hold harmless an Indemnified Party under Sections
5(a) or 5(b) in respect of any loss, claim, damage or liability (or action in
respect thereof) referred to therein, each indemnifying party shall, in lieu of
indemnifying such Indemnified Party, contribute to the amount paid or payable by
such Indemnified Party as a result of such loss, claim, damage or liability (or
action in respect thereof) (i) in such proportion as is appropriate to reflect
the relative benefits received by the Company from the offering and sale of the
Restricted Securities on the one hand and a Holder with respect to the sale by
such Holder of the Restricted Securities on the other, or (ii) if the allocation
provided by Section 5(d)(i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in Section 5(d)(i) but also the relative fault of the Company on the one hand
and the Holders on the other in connection with the statements or omissions or
alleged statements or alleged omissions that resulted in such loss, claim,
damage or liability (or action in respect thereof), as well as any other
relevant equitable considerations. The relative benefits received by the Company
on the one hand and a Holder on the other with respect to such offering and such
sale shall be deemed to be in the same proportion as the total net proceeds from
the offering of the Notes purchased under the Purchase Agreement (net of
discounts and commissions but before deducting expenses) received by the Company
on the one hand, bear to the total net proceeds received by such Holder with
respect to its sale of Restricted Securities on the other. The relative fault of
the parties shall be determined by reference to 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 the Holders on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and each Holder agree that it
would not be just and equitable if the amount of contribution pursuant to this
Section 5(d) were determined by pro rata allocation or by any other method of
allocation that does not take into account the equitable considerations referred
to in the first sentence of this Section 5(d). The amount paid or
payable by an Indemnified Party as a result of the loss, claim, damage or
liability, or action in respect thereof, referred to above in this Section 5
shall be deemed to include, for purposes of this Section 5, any legal or other
expenses reasonably incurred by such Indemnified Party in connection with
investigating or defending or preparing to defend any such action or claim.
Notwithstanding the provisions of this Section 5, no Holder shall be required to
contribute any amount in excess of the amount by which the net proceeds received
by such Holder from the sale of Restricted Securities pursuant to a Shelf
Registration Statement exceeds the amount of any damages that such Holder has
otherwise been required to pay by reason of any untrue or alleged untrue
statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Holders’ obligations
to contribute as provided in this Section 5(d) are several and not
joint.
(e)
The remedies provided for in this Section 5 are not exclusive and shall
not limit any rights or remedies that may otherwise be available to any
Indemnified Party at law or in equity.
(f)
The indemnity and contribution provisions contained in this
Section 5 shall remain operative and in full force and effect regardless of any
termination of this Agreement, any investigation made by or on behalf of the
Initial Purchasers, any Holder, the Company, any controlling persons, or any of
their respective officers, directors, partners, employees, representatives and
agents, and any sale of Restricted Securities pursuant to a Shelf Registration
Statement.
6.
Underwritten
Offering. Notwithstanding any other provision of this Section
6, the method of distribution of Registrable Securities pursuant to such Shelf
Registration Statement shall not take the form of an underwritten offering
pursuant to this Section 6 hereof without the prior written agreement of the
Company. Any Holder of Registrable Securities who desires to do so
may sell Registrable Securities (in whole or in part) in an underwritten
offering to which the Company has agreed; provided that (i) the
Electing Holders of at least 33-1/3% of the number of Registrable Securities
then covered by the Shelf Registration Statement shall request such an offering
and (ii) at least such aggregate principal amount of such Registrable Securities
shall be included in such offering; and provided, further, that the
Company shall not be obligated to cooperate with more than one underwritten
offering during the Effectiveness Period. Upon receipt of such a
request, the Company shall provide all Holders of Registrable Securities written
notice of the request, which notice shall inform such Holders that they have the
opportunity to participate in the offering. In any such underwritten
offering, the investment banker or bankers and manager or managers that will
administer the offering will be selected by, and the underwriting arrangements
with respect thereto (including the size of the offering) will be approved by,
the holders of a majority of the Registrable Securities to be included in such
offering; provided,
however, that such
investment bankers and managers and underwriting arrangements must be reasonably
satisfactory to the Company. No Holder may participate in any
underwritten offering contemplated hereby unless (a) such Holder agrees to sell
such Holder’s Registrable Securities to be included in the underwritten offering
in accordance with any approved underwriting arrangements, (b) such Holder
completes and executes all reasonable questionnaires, powers of attorney,
indemnities, underwriting agreements, lock-up letters and other documents
required under the terms of such approved underwriting arrangements, and (c) if
such Holder is not then an Electing Holder, such Holder returns a completed and
signed Notice and Questionnaire to the Company in accordance with Section
3(a)(ii) hereof within a reasonable amount of time before such underwritten
offering. The Holders participating in any underwritten offering
shall be responsible for any underwriting discounts and commissions and fees
and, subject to Section 4 hereof, expenses of their own counsel. The
Company shall pay all expenses customarily borne by issuers in an underwritten
offering, including but not limited to filing fees, the fees and disbursements
of its counsel and independent public accountants and any printing expenses
incurred in connection with such underwritten
offering. Notwithstanding the foregoing or the provisions of Section
3(n) hereof, upon receipt of a request from the Managing Underwriter or a
representative of Holders of a majority of the Registrable Securities to be
included in an underwritten offering to prepare and file an amendment or
supplement to the Shelf Registration Statement and Prospectus in connection with
an underwritten offering, the Company may delay the filing of any such amendment
or supplement for up to 90 days if the Board of Directors of the Company shall
have determined in good faith that the Company has a bona fide business reason
for such delay.
7.
Additional Interest.
(a)
If (i) on or prior to the 120th day following the Closing
Date, a Shelf Registration Statement has not been filed with the Commission,
(ii) on or prior to the 180th day following the Closing Date, such Shelf
Registration Statement has not been declared or become effective or (iii) if,
after the effectiveness date of the Shelf Registration Statement, (x) the Shelf
Registration Statement ceases to be effective or usable for the offer and sale
of Registrable Securities (other than due to a Suspension Period), and the
Company fails to file (and have become effective), within five Business Days, a
post-effective amendment to the Shelf Registration Statement or amendment or
supplement to the Prospectus contained therein or such other document with the
Commission to make the Shelf Registration Statement effective or such Prospectus
usable, or (y) Suspension Periods exceed 90 days (or 120 days, if the maximum
number of days for Suspension Periods is increased pursuant to the proviso to
Section 2(c) hereof) in the aggregate, whether or not consecutive, during any
360-day period during the Effectiveness Period (each, a “Registration Default”),
the Company shall be required to pay additional interest (“Additional
Interest”), from and including the day following such Registration Default to
but excluding the day on which such Registration Default is cured, at a rate per
annum equal to one-quarter of one percent (0.25%) of the aggregate principal
amount of the Notes, to and including the 90th day following such Registration
Default and one-half of one percent (0.50%) of the aggregate principal amount of
the Notes from and after the 91st day following such Registration
Default.
(b)
Any amounts to be paid as Additional Interest pursuant to
Section 7(a) shall be paid in cash semiannually in arrears, on each interest
payment date under the Indenture to the Person entitled to receive the related
payment of interest under the terms of the Indenture.
(c)
In no event shall the Company be required to pay
Additional Interest in excess of the applicable maximum amount of one-half of
one percent (0.50%) set forth above, regardless of whether one or multiple
Registration Defaults exist.
8.
Rule 144A and Rule 144.
The
Company agrees with each Holder, for so long as any Registrable Securities
remain outstanding, (i) during any period in which the Company is not subject to
Section 13 or 15(d) of the Exchange Act, to make available, upon request of any
Holder, to such Holder of Registrable Securities in connection with any sale
thereof and any prospective purchaser of such Registrable Securities designated
by such Holder, the information required by Rule 144A(d)(4) under the Securities
Act in order to permit resales of such Registrable Securities pursuant to Rule
144A, and (ii) during any period in which the Company is subject to Section 13
or 15 (d) of the Exchange Act, to make all filings required thereby in a manner
that satisfies the “Current Public Information” requirements in order to permit
resales of such Registrable Securities pursuant to Rule 144.
9.
Miscellaneous.
(a)
Free Writing Prospectuses.
Each Holder represents that it has not prepared or had prepared on its behalf or
used or referred to, and agrees that it will not prepare or have prepared on its
behalf or use or refer to, any Free Writing Prospectus, and has not distributed
and will not distribute any written materials in connection with the offer or
sale of the Registrable Securities without the prior express written consent of
the Company and, in connection with any underwritten offering, the
underwriters. Any such Free Writing Prospectus consented to by the
Company and, if applicable, the underwriters, as the case may be, is hereinafter
referred to as a “Permitted Free Writing Prospectus.” The Company
represents and agrees that it has treated and will treat, as the case may be,
each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus,
including in respect of timely filing with the Commission, legending and
recordkeeping.
(b) Other Registration
Rights. The Company may grant registration rights that would
permit any person that is a third party the right to piggy-back on any Shelf
Registration Statement, provided that if the Managing
Underwriter of any underwritten offering conducted pursuant to Section 6 hereof
to which the Company has agreed notifies the Company and the Electing Holders
that the total amount of securities which the Electing Holders and the holders
of such piggy-back rights intend to include in any Shelf Registration Statement
is so large as to materially threaten the success of such offering (including
the price at which such securities can be sold), then the amount, number or kind
of securities to be offered for the account of holders of such piggy-back rights
will be reduced to the extent necessary to reduce the total amount of securities
to be included in such offering to the amount, number and kind recommended by
the Managing Underwriter prior to any reduction in the amount of Registrable
Securities to be included in such Shelf Registration Statement.
(c)
Specific Performance. The
parties hereto acknowledge that there would be no adequate remedy at law if the
Company fails to perform any of its obligations hereunder and that the Initial
Purchasers and the Holders from time to time may be irreparably harmed by any
such failure, and accordingly agree that the Initial Purchasers and such
Holders, in addition to any other remedy to which they may be entitled at law or
in equity and without limiting the remedies available to the Electing Holders
under Section 7 hereof, shall be entitled to compel specific performance of the
obligations of the Company under this Registration Rights Agreement in
accordance with the terms and conditions of this Registration Rights Agreement,
in any court of the United States or any State thereof having
jurisdiction.
(d)
Actions Affecting Restricted
Securities. The Company shall not, directly or indirectly, take any
action with respect to the Registrable Securities as a class that would
adversely affect the ability of the Holders of Registrable Securities to include
such Registrable Securities in a registration undertaken pursuant to this
Agreement.
(e)
No
Inconsistent Agreements. The Company has not, as of the date hereof,
entered into, nor shall it, on or after the date hereof, 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.
(f)
Amendments and Waivers. This
Agreement, including this Section 9(f), may be amended, and waivers or consents
to departures from the provisions hereof may be given, only by a written
instrument duly executed by the Company and the Holders of a majority in
aggregate principal amount of Registrable Securities then
outstanding. Each Holder of Registrable Securities outstanding at the
time of any such amendment, waiver or consent or thereafter shall be bound by
any amendment, waiver or consent effected pursuant to this Section 9(f), whether
or not any notice, writing or marking indicating such amendment, waiver or
consent appears on the Registrable Securities or is delivered to such
Holder.
(g) Notices. All notices and
other communications provided for or permitted hereunder shall be given as
provided in the Indenture; provided, that the Company
may deliver notices and other communications provided for or permitted hereunder
to any Electing Holder at its address as set forth in the most recent Notice and
Questionnaire that it has delivered.
(h)
Securities Held by the Company or
Their Affiliates. Whenever the consent or approval of Holders of a
specified percentage of Registrable Securities is required hereunder,
Registrable Securities held by the Company or its Affiliates (other than
subsequent Holders if such subsequent Holders are deemed to be Affiliates solely
by reason of their holding of such Registrable Securities) shall not be counted
in determining whether such consent or approval was given by the Holders of such
required percentage.
(i)
Parties in
Interest. The parties to this Agreement intend that all Holders of
Registrable Securities shall be entitled to receive the benefits of this
Agreement and that any Electing Holder shall be bound by the terms and
provisions of this Agreement by reason of such election with respect to the
Registrable Securities which are included in a Shelf Registration
Statement. All the terms and provisions of this Agreement shall be
binding upon, shall inure to the benefit of and shall be enforceable by the
respective successors and assigns of the parties hereto and any Holder from time
to time of the Registrable Securities to the aforesaid extent. In the
event that any transferee of any Holder of Registrable Securities shall acquire
Registrable Securities, in any manner, whether by gift, bequest, purchase,
operation of law or otherwise, such transferee shall, without any further
writing or action of any kind, be entitled to receive the benefits of and, if an
Electing Holder, be conclusively deemed to have agreed to be bound by and to
perform all of the terms and provisions of this Agreement to the aforesaid
extent.
(j) 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.
(k) Headings. The headings in
this Agreement are for convenience of reference only and shall not limit or
otherwise affect the meaning hereof.
(l) GOVERNING LAW. THIS AGREEMENT
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK.
(m) Entire Agreement. This
Agreement is intended by the parties as a final expression of their agreement
and intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained
herein. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein with respect to
the registration rights granted by the Company with respect to the Registrable
Securities. This Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter.
(n) Severability. In
the event that any one or more of the provisions contained herein, or the
application thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions hereof shall not be in any way impaired or affected thereby, it being
intended that all of the rights and privileges of the parties hereto shall be
enforceable to the fullest extent permitted by law.
(o) Survival. The respective
indemnities, agreements, representations, warranties and other provisions set
forth in this Agreement or made pursuant hereto shall remain in full force and
effect, regardless of any investigation (or any statement as to the results
thereof) made by or on behalf of any Electing Holder, any director, officer or
partner of such Holder, any agent or underwriter, any director, officer or
partner of such agent or underwriter, or any controlling person of any of the
foregoing, and shall survive the transfer and registration of the Registrable
Securities of such Holder.
(p) Confidentiality. Each
Holder agrees, by its acquisition of a Restricted Security, to hold in
confidence any communication that has been designated in writing as confidential
by the Company.
[Signature page
follows.]
Please
confirm that the foregoing correctly sets forth the agreement between the
Company and you.
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By
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/s/ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
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Title:
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Chief
Financial Officer
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Name:
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▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
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The
foregoing Agreement is hereby confirmed this 10th day of
March, 2008
▇▇▇▇▇▇
BROTHERS INC.
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By:
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/s/ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
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Authorized
Signatory
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▇▇▇▇▇▇
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Vice
President
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▇.▇.
▇▇▇▇▇▇ SECURITIES INC.
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By:
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/s/ ▇▇▇▇
▇’▇▇▇▇
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Authorized
Signatory
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DEUTSCHE
BANK SECURITIES INC.
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By:
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/s/ ▇▇▇▇▇▇
▇▇▇▇▇▇
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Authorized
Signatory
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▇▇▇▇▇▇
▇▇▇▇▇▇
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Managing
Director
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By:
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/s/ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
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Authorized
Signatory
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Vice
President
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BNP
PARIBAS
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By:
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ING
BANK N.V., LONDON BRANCH
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