RUMBLEON, INC. Form of Registration Rights Agreement
Exhibit 4.3
$38,750,000
6.75% Convertible Senior Notes Due 2025
Form of
January 14, 2020
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RumbleOn, Inc., a Nevada corporation (the
“Company”), proposes to issue to
___________________________ and ___________________________, (the
“Investors”) pursuant to the Exchange and Subscription
Agreement dated January 10, 2020, between the Company and the
Initial Holders (the “Exchange and Subscription
Agreement”), as amended
by that certain Joinder and Amendment, dated January 13, 2020, by
and among the Company, the Investors and
___________________________.
(“___________________________” and together with the Investors, each an
“Initial
Holder” and collectively,
the “Initial
Holders”). $38,750,000
aggregate principal amount of its 6.75% Convertible Senior Notes
due 2025 (the “Notes”) upon the terms and subject to the
conditions set forth in the Exchange and Subscription
Agreement.
As
an inducement to the Initial Holders to enter into the Exchange and
Subscription Agreement and in satisfaction of a condition to the
obligations of the Initial Holders thereunder, the Company agrees
with the Initial Holders, for the benefit of the Holders (as
defined below), as follows:
1.
Certain Definitions.
Capitalized
terms used but not defined herein shall have the meanings given to
such terms in the Exchange and Subscription Agreement. For purposes
of this Registration Rights Agreement, the following terms shall
have the following meanings:
(a) “Additional
Interest” has the meaning
assigned thereto in Section 2(d).
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(b) “Additional
Interest Payment Date”
has the meaning assigned thereto in Section
2(d).
(c) “Affiliate”
has the meaning set forth in Rule 405 under the Securities Act,
except as otherwise expressly provided herein.
(d) “Agreement”
means this Registration Rights Agreement, as the same may be
amended from time to time pursuant to the terms
hereof.
(e) “Automatic
Shelf Registration Statement” has the meaning set forth in Rule 405
under the Securities Act.
(f) “Business
Day” means any day that
is not a Saturday, Sunday or other day on which commercial banks in
New York City are authorized or required by law to remain
closed.
(g) “Commission”
means the 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.
(h) “Company”
has the meaning assigned thereto in the first paragraph of this
Agreement.
(i) “Deferral
Notice” has the meaning
assigned thereto in Section 3(b).
(j) “Deferral
Period” has the meaning
assigned thereto in Section 3(b).
(k) “Effective
Period” has the meaning
assigned thereto in Section 2(a).
(l) “Exchange
Act” means the Securities
Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder.
(m) “Exchange
and Subscription Agreement” has the meaning assigned thereto in the
first paragraph of this Agreement”
(n) “FINRA”
means the Financial Industry Regulatory Authority,
Inc.
(o) “Holder”
means each holder, from time to time, of Registrable Securities
(including the Initial Holders).
(p) “Indemnified
Holder” has the meaning
assigned thereto in Section 6(a).
(q) “Indenture”
means the Indenture dated as of January 14, 2020 between the
Company and the Trustee, pursuant to which the Notes are being
issued.
(r) “Initial
Holders” has the meaning
assigned thereto in the first paragraph of this
Agreement.
(s) “Last
Reported Sale Price” has
the meaning assigned to it in the Indenture.
(t) “Material
Event” has the meaning
assigned thereto in Section 3(a)(iv).
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(u) “Majority
Holders” means, on any
date, the holders of the majority in aggregate amount of the
Registrable Securities; provided that such aggregate amount, with
respect to Notes that are Registrable Securities will be based on
the aggregate principal amount of Notes that are Registrable
Securities, and with respect to Shares that are Registrable
Securities, will be based on the average of the Last Reported Sale
Prices of the Company’s Common Stock for each of five
consecutive trading days ending on a date chosen by the Company in
a reasonable manner to effect the intent of this Agreement
multiplied by the number of such Shares that are Registrable
Securities; provided further that whenever the consent or approval
of the Majority Holders is required hereunder, any Registrable
Securities owned directly or indirectly by the Company or any
Affiliate shall not be counted in determining whether such consent
or approval was given by the Majority Holders.
(v) “Notice
and Questionnaire” means
a written notice delivered to the Company containing substantially
the information called for by the Form of Selling Securityholder
Notice and Questionnaire attached as Annex A to this
Agreement.
(w) “Notice
Holder” means, on any
date, any Holder that has delivered a properly completed Notice and
Questionnaire to the Company on or prior to such
date.
(x) “Notes”
has the meaning assigned thereto in the first paragraph of this
Agreement.
(y) “Person”
means a corporation, limited liability company, association,
partnership, organization, business, individual, government or
political subdivision thereof or governmental
agency.
(z) “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 430A,
430B or 430C 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.
(aa) “Registrable
Securities” means the
Securities; provided, however,
that such Securities shall not be
Registrable Securities if as of the applicable date of
determination (i) such Securities have ceased to be outstanding;
(ii) in the circumstances contemplated by Section 2(a), a
registration statement registering such Securities under the
Securities Act has been declared or becomes effective and such
Securities have been sold or otherwise transferred or disposed of
by the Holder thereof pursuant to such effective registration
statement; or (iii) Securities that have been transferred or sold
in a transaction in which the Company delivered a new security in
place of the Securities and such new security (x) is not subject to
transfer restrictions under the Securities Act, (y) does not bear a
restrictive legend and (z) is assigned an unrestricted
CUSIP.
(bb) “Registration
Default” has the meaning
assigned thereto in Section 2(d).
(cc) “Registration
Expenses” has the meaning
assigned thereto in Section 5.
(dd) “Rule
144,”
“Rule
144A,”
“Rule
405,”
“Rule
415” and
“Rule
433” mean, in each case,
such rule as promulgated under the Securities
Act.
(ee) “Securities”
means the Notes and the Shares.
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(ff) “Securities
Act” means the Securities
Act of 1933, as amended, and the rules and regulations promulgated
thereunder.
(gg) “Shares”
means the shares of Class B Common Stock of the Company, par value
$0.001 per share (the “Common Stock”), as of the date hereof (and subject to
Section 14.07 of the Indenture), into which the Notes are
convertible or that have been issued upon any conversion of Notes
into Common Stock of the Company, including any Interest Make-Whole
Payment (as defined in the Indenture).
(ii)
“Shelf
Inspectors” has the
meaning assigned thereto in Section 3(a)(vii).
(hh) “Shelf
Registration Statement”
means the shelf registration statement referred to in Section 2(a),
as amended or supplemented by any amendment or supplement,
including post-effective amendments and any additional information
contained in a form of prospectus or prospectus supplement that is
deemed retroactively to be a part of the Shelf Registration
Statement pursuant to Rules 430A, 430B or 430C, and all materials
incorporated by reference or explicitly deemed to be incorporated
by reference in such Shelf Registration Statement, which may be an
Automatic Shelf Registration Statement.
(ii) “Special
Counsel” shall have the
meaning assigned thereto in Section 5.
(jj) “Trust
Indenture Act” means the
Trust Indenture Act of 1939, as amended, or any successor thereto,
and the rules, regulations and forms promulgated thereunder, all as
the same shall be amended from time to time.
(kk) “Trustee”
shall have the meaning assigned such term in the
Indenture.
Unless
the context otherwise requires, any reference herein to a
“Section” or “clause” refers to a Section
or clause, as the case may be, of this Agreement, and the words
“herein,” “hereof” and
“hereunder” and other words of similar import refer to
this Agreement as a whole and not to any particular Section or
other subdivision. Unless the context otherwise requires, any
reference to a statute, rule or regulation refers to the same
(including any successor statute, rule or regulation thereto) as it
may be amended from time to time.
2.
Registration Under the Securities Act.
(a) The
Company shall file an Automatic Shelf Registration Statement, if
the Company is eligible to do so and has not already done so
(provided such previously filed Automatic Shelf Registration
Statement covers all Holders of Registrable Securities determined
as of the date such subsequent obligation arose), and, if the
Company is not eligible for an Automatic Shelf Registration
Statement, then in lieu of the foregoing the Company shall file a
Shelf Registration Statement 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 or any similar rule
that may be adopted by the Commission, and use its commercially
reasonable efforts to cause the Shelf Registration Statement to
become or be declared effective under the Securities Act on the day
that is 120 days after the date of this Agreement. It being
understood that if there are no Registrable Securities entitled to
be included in the Shelf Registration Statement at such time that
the Company shall have no obligation to file such Shelf
Registration Statement at such time.
The Company agrees to use its commercially
reasonable efforts to keep such Shelf Registration Statement
continuously effective, subject to Section 3(b), until the earliest
of (x) the date by which all Registrable Securities have been sold
pursuant to such Shelf Registration Statement; and (y) such date as
each of the Registrable Securities covered by the Shelf
Registration Statement ceases to be a Registrable Security (the
“Effective
Period”).
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(b) The
Company further agrees that it shall cause the Shelf Registration
Statement, the related Prospectus and any amendment or supplement
thereto, as of the effective date of the Shelf Registration
Statement, as of the time of sale of any Securities under such
Shelf Registration Statement, and as of the date of any such
amendment or supplement, (i) to comply in all material respects
with the applicable requirements of the Securities Act and (ii) not
to contain any untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary in order
to make the statements therein (in the case of the Prospectus, in
the light of the circumstances under which they were made) not
misleading, and the Company agrees to furnish to the Holders such
number of copies as such Holders may reasonably request of any
supplement or amendment prior to its being used or promptly
following its filing with the Commission; provided, however,
that the Company shall have no
obligation to deliver to Holders copies of any amendment consisting
exclusively of an Exchange Act report or other Exchange Act filing
otherwise publicly available on the Commission’s ▇▇▇▇▇
database. If the Shelf Registration Statement, as amended or
supplemented from time to time, ceases to be effective for any
reason at any time during the Effective Period (other than because
all Registrable Securities registered thereunder shall have been
sold pursuant thereto or shall have otherwise ceased to be
Registrable Securities), the Company shall use its commercially
reasonable efforts to obtain the prompt withdrawal of any order
suspending the effectiveness thereof.
(c) Each
Holder agrees that if such Holder wishes to sell Registrable
Securities pursuant to the Shelf Registration Statement and related
Prospectus, it will do so only in accordance with this Section 2(c)
and Section 3(c) and Section 4 hereof. From and after the date the
Shelf Registration Statement is initially effective and until the
tenth (10th)
Business Day prior to the expiration of the Effective Period, the
Company shall, as promptly as is reasonably practicable after the
date a Notice and Questionnaire is delivered by a Notice Holder,
and in any event within (x) ten (10) Business Days after the date
such Notice and Questionnaire is received by the Company, (y) if a
Notice and Questionnaire is so received during a Deferral Period,
ten (10) Business Days after the expiration of such Deferral Period
or (z) if a Notice and Questionnaire is received prior to a
Deferral Period, but a Deferral Period occurs prior to ten (10)
Business Days after such receipt, ten (10) Business Days after the
expiration of such Deferral Period,
(i) if
required by applicable law, file with the Commission a
post-effective amendment to the Shelf Registration Statement or
prepare and, if required by applicable law, file a supplement to
the related Prospectus or a supplement or amendment to any document
incorporated therein by reference or file any other required
document so that the Holder delivering such Notice and
Questionnaire is named as a selling security holder 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 and such amendment is not
automatically effective, use its commercially reasonable efforts to
cause such post-effective amendment to be declared or to otherwise
become effective under the Securities Act as promptly as is
reasonably practicable;
(ii) provide
such Holder with as many copies of any documents filed pursuant to
Section 2(c)(i) as such Holder may reasonably request in connection
with the Securities covered by such Holder’s Notice and
Questionnaire; and
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(iii) notify
such Holder as promptly as reasonably practicable after the
effectiveness under the Securities Act of any post-effective
amendment filed pursuant to Section 2(c)(i);
provided that if such Notice
and Questionnaire is delivered during a Deferral Period, the
Company shall so inform the Holder delivering such Notice and
Questionnaire and shall take the actions set forth in this Section
2(c) above upon expiration of the Deferral Period in accordance
with Section 3(b). 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 or
prospectus supplement; provided, however,
that any Holder that becomes a Notice
Holder pursuant to the provisions of this Section 2(c) (whether or
not such Holder was a Notice Holder at the time the Shelf
Registration Statement was declared or otherwise became 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(c). Notwithstanding the forgoing, in
no event shall the Company be required to file more than one
post-effective amendment to the Shelf Registration Statement
pursuant to Section 2(c)(i) during any 45-day
period.
(d) If
any of the following events (any such event a
“Registration
Default”) shall occur,
then additional interest (the “Additional
Interest”) shall become
payable by the Company to Holders in respect of the Notes as
follows:
(i) if
on the day that is 120 days after the date of this Agreement,
Registrable Securities are held by any Person other than the
Company and the Shelf Registration Statement has not been filed
with and declared effective by the Commission by such date (other
than pursuant to Section 3(b) hereof), and the Company does not
file and have declared effective a Shelf Registration Statement
within five (5) Business Days, then, commencing on the day
following the Registration Default, Additional Interest shall
accrue on the principal amount of the outstanding Notes that are
Registrable Securities at a rate of 0.50% per annum;
(ii) [Reserved];
(iii) if
the Shelf Registration Statement has become or been declared
effective but such Shelf Registration Statement ceases to be
effective or the prospectus contained therein ceases to be usable
in connection with the resales of Registrable Securities at any
time during the Effective Period (other than pursuant to Section
3(b) hereof), and the Company does not cure the Registration
Default within five (5) Business Days by a post-effective amendment
or a report filed pursuant to the Exchange Act, then, commencing on
the day such Shelf Registration Statement ceases to be effective,
Additional Interest shall accrue on the principal amount of the
outstanding Notes that are Registrable Securities at a rate of
0.50% per annum;
(iv) if
the aggregate duration of Deferral Periods in any period exceeds
the number of days permitted in respect of such period pursuant to
Section 3(b) hereof, then, commencing on the day the aggregate
duration of Deferral Periods in any period exceeds the number of
days permitted in respect of such period, Additional Interest shall
accrue on the principal amount of the outstanding Notes that are
Registrable Securities at a rate of 0.50% per annum;
provided, however, that the
Additional Interest rate on the Notes shall not exceed in the
aggregate 0.50% per annum and shall not be payable under more than
one clause above for any given period of time; provided
further, however, that
Additional Interest on the Notes that are Registrable Securities as
a result of clauses (i) through (iv) above, shall cease to accrue
upon the earlier of (1) the filing and effectiveness of the Shelf
Registration Statement (in the case of clause (i) above), (2) the
effectiveness of the Shelf Registration Statement which had ceased
to remain effective (in the case of clause (iii) above), (3) the
termination of the Deferral Period that caused the limit on the
aggregate duration of Deferral Periods in a period set forth in
Section 3(b) to be exceeded (in the case of clause (iv) above), (4)
the date the Notes cease to be Registrable Securities or (5) the
date the Notes cease to be outstanding (as determined in accordance
with the terms of the Indenture).
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Additional Interest on the Notes, if any, will be
payable in arrears in cash on January 1 and July 1 of each year
(the “Additional Interest Payment
Date”) to holders of
record of outstanding Notes that are Registrable Securities at the
close of business on December 15 or June 15 (whether or not a
Business Day), as the case may be, immediately preceding the
relevant Additional Interest Payment Date; provided that (x) any accrued and unpaid Additional
Interest with respect to any Notes or portion thereof submitted for
conversion shall be paid in the manner and to the extent provided
for the payment of interest in Section 14.02(h) of the Indenture
and (y) that any accrued and unpaid Additional Interest with
respect to any Notes or portion thereof submitted for repurchase on
a Fundamental Change Repurchase Date (as defined in the Indenture),
and not withdrawn in compliance with Section 15.03 of the
Indenture, shall be paid in the manner provided for the payment of
interest in Section 15.02(a) of the Indenture. Following the cure
of all Registration Defaults requiring the payment of Additional
Interest to the Holders of Notes that are Registrable Securities
pursuant to this Section 2(d), the accrual of Additional Interest
will cease (without in any way limiting the effect of any
subsequent Registration Default requiring the payment of Additional
Interest). Additional Interest on the Notes, if any, will accrue
beginning on the date provided for in clauses 2(d)(i) through (iv)
above, as applicable, to, but excluding, the date on which all
Registration Defaults have been cured. If a Holder converts some or
all of the Notes into Shares, such Holder will not be entitled to
receive Additional Interest on such Shares.
The
Company shall notify the Trustee as promptly as reasonably
practicable upon the happening of each and every Registration
Default. The Trustee shall be entitled, on behalf of Holders, to
seek any available remedy for the enforcement of this Agreement,
including for the payment of any Additional Interest if any becomes
due.
Notwithstanding
the foregoing, the parties agree that the sole monetary damages
payable for a violation of the terms of this Agreement with respect
to which additional monetary amounts are expressly provided shall
be as set forth in this Section 2(d). Nothing shall preclude a
Notice Holder or Holder from pursuing or obtaining specific
performance or other equitable relief with respect to this
Agreement.
3.
Registration
Procedures.
The
following provisions shall apply to the Shelf Registration
Statement filed pursuant to Section 2:
(a)
The
Company shall:
(i) notify
the Holders of Registrable Securities at least 20 (twenty) Business
Days before filing any Shelf Registration Statement pursuant to
Section 2 of the Company’s intent to file such Shelf
Registration Statement and seeking a determination from such Holder
as to whether such Holder elects to have its Registrable Securities
included in such Shelf Registration Statement;
(ii) before
filing any Shelf Registration Statement or Prospectus or any
amendments or supplements thereto with the Commission, furnish to
the Initial Holders copies of all such documents proposed to be
filed and use its commercially reasonable efforts to reflect in
each such document when so filed with the Commission such comments
as such Initial Holders reasonably shall propose within three (3)
Business Days of the delivery of such copies to the Holders;
provided, however, that the Company shall be permitted to file
prospectus supplements or post-effective amendments to reflect
additional selling securityholders without prior review of the
Initial Holders;
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(iii) use
its commercially reasonable efforts to prepare and file with the
Commission such amendments and post-effective amendments to the
Shelf Registration Statement and file with the Commission any other
required document as may be necessary to keep such Shelf
Registration Statement continuously effective until the expiration
of the Effective 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 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 Effective 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;
(iv) as
promptly as reasonably practicable, notify the Notice Holders (A)
when such Shelf Registration Statement or the Prospectus included
therein or any amendment or supplement to the Prospectus or
post-effective amendment has been filed with the Commission, and,
with respect to such Shelf Registration Statement or any
post-effective amendment that is not an Automatic Shelf
Registration Statement, when the same is declared or has become
effective, provided, that the availability of such Shelf Registration
Statement or any Prospectus or post-effective amendment on the
Commission’s ▇▇▇▇▇ database shall be considered notice for
the purpose of this Section 3(a)(iv),
(B)
of any request (but not the nature or
details regarding such request), following the effectiveness of the
Shelf Registration Statement, by the Commission or any other
federal or state governmental authority for amendments or
supplements to the Shelf Registration Statement or related
Prospectus (other than any such request relating to a review of the
Company’s Exchange Act filings), (C) of the issuance by the
Commission of any stop order suspending the effectiveness of such
Shelf Registration Statement or the initiation or written threat of
any proceedings for that purpose, (D) of the receipt by the Company
of any notification with respect to the suspension of the
qualification of the Registrable Securities for sale in any
jurisdiction or the initiation or written threat of any proceeding
for such purpose, (E) of the occurrence of any event or the
existence of any fact (but not the nature of or details concerning
such event or fact) (a “Material
Event”) as a 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
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 no notice by the Company shall be
required pursuant to this clause (E) in the event that the Company
either promptly files a prospectus supplement, amendment to the
Shelf Registration Statement to update the Prospectus or a Form 8-K
or other appropriate Exchange Act report that is incorporated by
reference into the Shelf Registration Statement, which, in either
case, contains the requisite information with respect to such
Material Event that results in such Shelf Registration Statement or
Prospectus, as the case may be, no longer containing any untrue
statement of material fact or omitting to state a material fact
required to be stated therein or necessary to make the statements
contained therein (in the case of the Prospectus, in light of the
circumstances under which they were made) not misleading, (F) of
the determination by the Company that a post-effective amendment to
the Shelf Registration Statement (other than for the purpose of
naming a Notice Holder as a selling securityholder therein) will be
filed with the Commission, which notice may, at the discretion of
the Company (or as required pursuant to Section 3(b)), state that
it constitutes a Deferral Notice, in which event the provisions of
Section 3(b) shall apply or (G) at any time when a Prospectus is
required (or but for the exemption contained in Rule 172 would be
required) to be delivered under the Securities Act, that the Shelf
Registration Statement, Prospectus, Prospectus amendment or
supplement or post-effective amendment does not conform in all
material respects to the applicable requirements of the Securities
Act and the rules and regulations of the Commission
thereunder;
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(v) prior
to any public offering of the Registrable Securities pursuant to
the Shelf Registration Statement, use its commercially reasonable
efforts to register or qualify, or cooperate with the Notice
Holders included therein and their respective counsel in connection
with the registration or qualification of Securities for offer and
sale under the securities or blue sky laws of such jurisdictions
within the United States as any such Notice Holders reasonably
request in writing and do any and all other acts or things
reasonably necessary or advisable to enable the offer and sale in
such jurisdictions of the Securities covered by the Shelf
Registration Statement; prior to any public offering of the
Registrable Securities pursuant to the Shelf Registration
Statement, use its commercially reasonable efforts to keep each
such registration or qualification (or exemption therefrom)
effective during the Effective Period in connection with such
Notice Holder’s offer and sale of Registrable Securities
pursuant to such registration or qualification (or exemption
therefrom) and use its commercially reasonable efforts to provide
for the disposition in such jurisdictions of such Registrable
Securities in the manner set forth in the Shelf Registration
Statement and the related Prospectus; provided that for purposes of this Section 3(a)(v), the
Company will not be required to qualify generally to do business in
any jurisdiction where it is not then so qualified or to take any
action which would subject it to general service of process or to
taxation in any such jurisdiction where it is not then so
subject;
(vi) use
its commercially reasonable efforts to lift any suspension of the
qualification of any of the Registrable Securities for sale in any
jurisdiction in which they have been qualified for sale, in each
case at the earliest practicable date;
(vii) upon
reasonable written notice, and only in connection with a
disposition of Securities under the Shelf Registration Statement,
for a reasonable period prior to the filing of the Shelf
Registration Statement, and throughout the Effective Period (but
not during a Deferral Period), (i) make reasonably available for
inspection by a representative of, and Special Counsel acting for,
the Majority Holders and any underwriter (and its counsel)
participating in any disposition of Securities pursuant to such
Shelf Registration Statement (collectively, the
“Shelf
Inspectors”), all
relevant and material financial and other records and pertinent
corporate documents of the Company and its subsidiaries and (ii)
use commercially reasonable efforts to have its officers,
employees, accountants and counsel make available all relevant
material information reasonably requested by such representative,
Special Counsel or any such underwriter in connection with such
Shelf Registration Statement, in each case as is reasonable and
customary for similar “due diligence” examinations of
issuers of similar size and business of the Company;
provided, however, that such persons shall first agree with the
Company that any information that is reasonably designated by the
Company as confidential at the time of delivery shall be kept
confidential by such persons and shall be used solely for the
purposes of exercising rights under this Agreement and satisfying
“due diligence” obligations under the Securities Act
and such person shall not engage in trading any securities of the
Company until such material non-public information becomes properly
publicly available, unless (w) disclosure of such information is
required by court or administrative order or is necessary to
respond to inquiries of regulatory authorities, (x) 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 or prospectus supplement referred to in this Agreement
upon a customary opinion of counsel for such persons delivered and
reasonably satisfactory to the Company, (y) 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 (z)
such information becomes available to any such person from a source
(other than the Company, its Affiliates, officers, employees,
accountants, agents and counsel) and such source is not bound by a
confidentiality agreement; provided, further, that with respect to any Special Counsel engaged
by the Majority Holders, the foregoing inspection and information
gathering shall be coordinated by one counsel designated by the
Majority Holders;
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(viii) if
requested by the Majority Holders, their Special Counsel or the
managing underwriters (if any) in connection with an underwritten
offering of the Registrable Securities pursuant to the Shelf
Registration Statement, use its commercially reasonable efforts to
cause (i) its counsel to deliver an opinion relating to the Shelf
Registration Statement and the Securities in a customary form, (ii)
its officers to execute and deliver all customary documents and
certificates reasonably requested by the Majority Holders, their
Special Counsel or the managing underwriters (if any) and (iii) its
registered independent public accounting firm to provide a comfort
letter or letters relating to the Shelf Registration Statement in a
reasonable and customary form, subject to receipt of appropriate
documentation as contemplated, and only if permitted, by Statement
of Auditing Standards No. 72 or any successor statement thereto,
covering matters of the type customarily covered in comfort letters
in connection with secondary underwritten offerings;
provided,
that in no event shall the Company be
required to furnish such opinions, documents or comfort letters
pursuant to the provisions of this Section in more than three
underwritten offerings.
(ix) if
reasonably requested in writing by any Initial Holder or any Notice
Holder as a result of the “due diligence” examination
referred to in Section 3(a)(vii) above, promptly incorporate in a
prospectus supplement or post-effective amendment to the Shelf
Registration Statement such information as such Initial Holder or
such Notice Holder shall, on the basis of a written opinion of
Special 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(a)(ix) that are not, in the
reasonable opinion of counsel for the Company, in compliance with
applicable law; provided,
further, that the Company shall
have no liability for Additional Interest under this Agreement if
it reasonably objects to making such additional filing and if such
additional filing would otherwise cause the Company to pay
Additional Interest.
(x) as
promptly as practicable furnish to each Notice Holder and the
Initial Holders, upon their request and without charge, at least
one (1) conformed copy of the Shelf Registration Statement and any
amendments thereto, including financial statements but excluding
schedules, all documents incorporated or deemed to be incorporated
therein by reference and all exhibits; provided, however,
that the Company shall have no
obligation to deliver to Notice Holders or the Initial Holders a
copy of any amendment publicly available on the Company’s
website or in the Commission’s ▇▇▇▇▇
database;
(xi) during
the Effective Period, deliver to each Notice Holder in connection
with any sale of Registrable Securities pursuant to the Shelf
Registration Statement, upon their request and without charge, as
many copies of the Prospectus relating to such Registrable
Securities (including each preliminary prospectus) and any
amendment or supplement thereto as such Notice Holder may
reasonably request; and the Company hereby consents (except during
such periods that a Deferral Notice is outstanding and has not been
revoked) to the use of such Prospectus or each amendment or
supplement thereto by each Notice Holder in connection with any
offering and sale of the Registrable Securities covered by such
Prospectus or any amendment or supplement thereto in the manner set
forth therein and subject to applicable law; and
(xii) during
the Effective Period, cooperate with the Notice Holders to
facilitate the timely preparation and delivery of certificates
representing Securities to be sold pursuant to the Shelf
Registration Statement free of any restrictive legends, unless
required by applicable law, and in such denominations as permitted
by the Indenture and registered in such names as the Holders
thereof may request in writing at least one (1) Business Days prior
to sales of Securities pursuant to such Shelf Registration
Statement; provided, that nothing herein shall require the Company to
deliver certificated Securities to any beneficial holder of
Securities, except as required by the Indenture;
provided
further however, such Notice
Holders shall pay any such tax that is due because such Notice
Holder requests any shares of Common Stock to be issued in a name
other than the holder’s name as provided for in Sections
2.05(a) and 14.02(e) of the Indenture.
10
(b) Upon
(A) the issuance by the Commission 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 Material Event as a
result of which the 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 required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading, or (C) the occurrence or
existence of any corporate development or business reason that, in
the sole discretion of the Company, makes it appropriate to suspend
the availability of the Shelf Registration Statement and the
related Prospectus, including, without limitation, the acquisition
of assets, pending corporate developments, public filings with
Commission and similar events, the Company will (i) in the case of
clause (B) above, subject to the second sentence of this provision,
use its commercially reasonable efforts to prepare and file an
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 (1) 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 (2) such
Prospectus does not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, as
thereafter delivered or made available to the purchasers of the
Registrable Securities being sold thereunder, and, in the case of a
post-effective amendment to the Shelf Registration Statement,
subject to the second sentence of this provision, use its
commercially reasonable efforts to cause it to be declared
effective or otherwise become effective and (ii) give notice to the
Notice Holders that the availability of the Shelf Registration
Statement is suspended (a “Deferral
Notice”). The Company
will use its commercially reasonable efforts to ensure that the use
of the Prospectus may be resumed (x) in the case of clause (A)
above, as promptly as reasonably practicable, (y) in the case of
clause (B) above, as soon as, in the sole judgment of the Company,
public disclosure of such Material Event would not be prejudicial
to or contrary to the interests of the Company or, if necessary to
avoid unreasonable burden or expense, as soon as practicable
thereafter and (z) in the case of clause (C) above, as soon as, in
the sole discretion of the Company, such suspension is no longer
appropriate; provided that the period during which the availability of
the Shelf Registration Statement and any Prospectus is suspended
(the “Deferral
Period”), without the
Company incurring any obligation to pay Additional Interest
pursuant to Section 2(d), shall not exceed forty-five (45) days in
the aggregate in any ninety (90) day period or an aggregate of
ninety (90) days in any 12-month period.
(c) Each
Holder agrees that upon receipt of any Deferral Notice from the
Company, such Holder shall forthwith discontinue (and cause any
placement or sales agent or underwriters acting on their behalf to
discontinue) the disposition of Registrable Securities pursuant to
the Shelf Registration Statement until such Holder (i) shall have
received copies of such amended or supplemented Prospectus and, if
so directed by the Company, such Holder shall deliver to the
Company (at the Company’s expense) all copies, other than
permanent file copies, then in such Holder’s possession of
the Prospectus covering such Registrable Securities at the time of
receipt of such notice or (ii) shall have received notice from the
Company that the disposition of Registrable Securities pursuant to
the Shelf Registration may continue. Each Holder shall keep
confidential any communication received by it from the Company
regarding the suspension of the use of the Prospectus, except as
required by applicable law.
11
(d) The
Company may require each Holder as to which any registration
pursuant to Section 2(a) is being effected to furnish to the
Company such information regarding such Holder and such
Holder’s intended method of distribution of such Registrable
Securities as the Company may from time to time reasonably request
in writing, but only to the extent such information is required to
comply with the Securities Act.
(e) The
Company shall provide a CUSIP number for all Registrable Securities
covered by the Shelf Registration Statement not later than the
effective date of such Shelf Registration Statement and provide the
Trustee and the transfer agent for the Shares with printed
certificates for the Registrable Securities that are in a form
eligible for deposit with The Depository Trust
Company.
(f) The
Company shall use commercially reasonable efforts to provide such
information as is required for any filings required to be made with
FINRA.
(g) Until
the expiration of the Effective Period, the Company will not
resell, and will use its commercially reasonable efforts to prevent
its “affiliates” (as defined in Rule 144) from
reselling, any of the Notes that have been reacquired by any of
them except pursuant to an effective registration statement under
the Securities Act.
(h) The
Company shall cause the Indenture to be qualified under the Trust
Indenture Act in a the manner prescribed by the Trust Indenture Act
and shall enter into any necessary supplemental indentures in
connection therewith.
(i) The
Company shall enter into such customary agreements and take such
other reasonable and lawful actions in connection therewith
(including those reasonably requested by the Majority Holders) in
order to expedite or facilitate disposition of such Registrable
Securities.
(j) The
Company shall cause the Shares covered by the Shelf Registration
Statement to be listed or quoted, as the case may be, on each
securities exchange or automated quotation system on which the
Common Stock is then listed or quoted.
4.
Holders’
Obligations.
(a) In
addition to the other limitations and requirements described
herein, each Holder agrees, by acquisition of the Registrable
Securities, that no Holder shall be entitled to sell any of such
Registrable Securities pursuant to the Shelf Registration Statement
or to receive a Prospectus relating thereto, unless such Holder has
furnished the Company with a completed Notice and Questionnaire as
required pursuant to Section 2(c) 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 to notify the Company as promptly as practicable of any
inaccuracy or change in information previously furnished by such
Notice Holder to the Company or of the occurrence of any event in
either case as a result of which any Prospectus relating to such
registration contains or would contain an untrue statement of a
material fact regarding such Notice Holder or such Notice
Holder’s intended method of disposition of such Registrable
Securities or omits to state any material fact regarding such
Notice Holder or such Notice Holder’s intended method of
disposition of such Registrable Securities necessary to make the
statements therein, in light of circumstances in which they were
made, not misleading, and promptly to furnish to the Company (i)
any additional information required to correct and update any
previously furnished information or required so that such
Prospectus shall not contain, with respect to such Notice Holder or
the disposition of such Registrable Securities, an untrue statement
of a material fact or omit to state a material fact necessary to
make the statements therein, in light of the circumstances in which
they were made, not misleading and (ii) any other information
regarding such Notice Holder and the distribution of such
Registrable Securities as may be required to be disclosed in the
Shelf Registration Statement under applicable law or pursuant to
Commission comments. Each Holder further agrees not to sell any
Registrable Securities pursuant to the Shelf Registration Statement
without delivering, causing to be delivered, or, if permitted by
applicable law, making available, a Prospectus to the purchaser
thereof and, following termination of the Effective Period, to
notify the Company, within ten (10) Business Days of a request by
the Company, of the amount of Registrable Securities sold pursuant
to the Shelf Registration Statement and, in the absence of a
response, the Company may assume that all of the Holder’s
Registrable Securities were so sold in compliance with applicable
law and this Agreement unless and until the Company is notified
otherwise.
12
(b) Any
sale of any Registrable Securities by any Holder shall constitute a
representation and warranty by such Holder that the information
relating to such Holder and its plan of distribution is as set
forth in the Prospectus delivered by such Holder in connection with
such disposition, that such Prospectus does not as of the time of
such sale contain any untrue statement of a material fact relating
to or provided by such Holder or its plan of distribution and that
such Prospectus does not as of the time of such sale omit to state
any material fact relating to or provided by such Holder or its
plan of distribution necessary to make the statements in such
Prospectus, in the light of the circumstances under which they were
made, not misleading. Each Holder further agrees that such Holder
will not make any offer relating to the Registrable Securities that
would constitute an “issuer free writing prospectus”
(as defined in Rule 433) or that would otherwise constitute a
“free writing prospectus” (as defined in Rule 405)
required to be filed by the Company with the Commission or retained
by the Company under Rule 433 of the Securities Act, unless it has
obtained the prior written consent of the Company.
(c) The
Holders shall not offer Registrable Securities under the Shelf
Registration Statement in an underwritten offering without the
Company’s prior written consent. Any underwritten offering
agreed to by the Company shall be on terms and conditions agreed to
by the Company in connection with such offering. The Company shall
not be required to undertake more than three underwritten offerings
pursuant to this Agreement.
5. Registration
Expenses.
The Company agrees to bear and to pay or cause to
be paid promptly after request being made therefor all fees and
expenses incident to the Company’s performance of or
compliance with this Agreement, including, but not limited to, (a)
all Commission and any FINRA registration and filing fees and
expenses, (b) all fees and expenses in connection with the
qualification of the Securities for offering and sale under the
state securities and blue sky laws referred to in Section 3(a)(v)
hereof, 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, each amendment or supplement to
each of the foregoing, the certificates representing the Securities
and all other documents relating hereto, (d) fees and expenses of
the Trustee under the Indenture, any escrow agent or custodian, and
of the registrar and transfer agent for the Shares, (e) in
connection with an underwritten offering, fees, disbursements and
expenses of counsel and the registered independent public
accounting firm of the Company (including the expenses of any
opinions or “cold comfort” letters required by or
incident to such performance and compliance) and (f) reasonable
fees, disbursements and expenses of one counsel for all Holders
retained in connection with the Shelf Registration Statement, as
selected by the Company (unless reasonably objected to by the
Majority Holders, in which case the Majority Holders shall select
such counsel for the Holders) (“Special
Counsel”), and fees,
expenses and disbursements of any other Persons, including special
experts, retained by the Company in connection with such
registration (collectively, the “Registration
Expenses”). To the extent
that any reasonable and proper Registration Expenses are incurred,
assumed or paid by any Holder or any underwriter or 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 underwriting discounts
and commissions and placement agent fees and commissions
attributable to the sale of such Registrable Securities and the
fees and disbursements of any counsel or other advisors or experts
retained by such Holders (severally or jointly), other than the
Special Counsel and experts specifically referred to
above.
13
6. Indemnification.
(a) The
Company shall indemnify and hold harmless each Notice Holder
(including, without limitation, the Initial Holders), its
Affiliates, their respective officers, directors, employees,
representatives and agents, and each Person, if any, who controls
such Notice Holder within the meaning of the Securities Act or the
Exchange Act (collectively referred to for purposes of this Section
6 and Section 7 as an “Indemnified
Holder”) from and against
any loss, claim, damage or liability, joint or several, or any
action in respect thereof (including, without limitation, any loss,
claim, damage, liability or action relating to purchases and sales
of Registrable Securities), to which that Indemnified Holder may
become subject, whether commenced or threatened, under the
Securities Act, the Exchange Act, any other federal or state
statutory law or regulation, at common law or otherwise, insofar as
such loss, claim, damage, liability or action arises out of, or is
based upon, (i) any untrue statement or alleged untrue statement of
a material fact contained in any such Shelf Registration Statement
or any Prospectus forming part thereof, or (ii) the omission or
alleged omission to state therein a material fact required to be
stated therein or necessary in order to make the statements therein
(in the case of any Prospectus, in the light of the circumstances
under which they were made) not misleading, and shall reimburse
each Indemnified Holder promptly upon demand for any legal or other
expenses reasonably incurred by that Indemnified Holder in
connection with investigating or defending or preparing to defend
against or appearing as a third party witness in connection with
any such loss, claim, damage, liability or action as such expenses
are incurred; provided, however,
that the Company shall not be liable
in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, an untrue
statement or alleged untrue statement in or omission or alleged
omission from any of such documents in reliance upon and in
conformity with any information provided by such Indemnified Holder
in writing to the Company expressly for use therein including its
Notice and Questionnaire. This indemnity agreement shall be in
addition to any liability that the Company may otherwise
have.
(b) Each
Notice Holder (including, without limitation, the Initial Holders)
shall indemnify and hold harmless the Company, its Affiliates,
their respective officers, directors, employees, representatives
and agents, and each Person, if any, who controls the Company
within the meaning of the Securities Act or the Exchange Act
(collectively referred to for purposes of this Section 6(b) and
Section 7 as the Company), from and against any loss, claim, damage
or liability, joint or several, or any action in respect thereof,
to which the Company may become subject, whether commenced or
threatened, under the Securities Act, the Exchange Act, any other
federal or state statutory law or regulation, at common law or
otherwise, insofar as such loss, claim, damage, liability or action
arises out of, or is based upon, (i) any untrue statement or
alleged untrue statement of a material fact contained in any such
Shelf Registration Statement or any Prospectus forming part
thereof, or (ii) the omission or alleged omission to state therein
a material fact required to be stated therein or necessary in order
to make the statements therein (in the case of any Prospectus, in
the light of the circumstances under which they were made) not
misleading, but in each case only to the extent that the untrue
statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with any
information furnished to the Company in writing by such Notice
Holder expressly for use therein including its Notice and
Questionnaire, and shall reimburse the Company for any legal or
other expenses reasonably incurred by the Company in connection
with investigating or defending or preparing to defend against or
appearing as a third party witness in connection with any such
loss, claim, damage, liability or action as such expenses are
incurred; provided, however,
that no such Notice Holder shall be
liable for any indemnity claims hereunder in excess of the amount
of net proceeds received by such Notice Holder from the sale of
Registrable Securities pursuant to such Shelf Registration
Statement. This indemnity agreement will be in addition to any
liability which any such Notice Holder may otherwise
have.
14
(c) Promptly
after receipt by an indemnified party under this Section 6 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 pursuant to Section 6(a) or
6(b), 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 under this Section 6 except to the extent that it has been
materially prejudiced (through the forfeiture of substantive rights
or defenses) by such failure; and provided, further,
that the failure to notify the
indemnifying party shall not relieve it from any liability that it
may have to an indemnified party otherwise than under this Section
6. If any such claim or action shall be brought against an
indemnified party, and it 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 6 for any legal or other
expenses subsequently incurred by the indemnified party in
connection with the defense thereof other than the 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 (1) the employment of counsel by the indemnified party has
been authorized in writing by the indemnifying party, (2) the
indemnified party has reasonably concluded (based upon advice of
counsel to the indemnified party) that there may be legal defenses
available to it or other indemnified parties that are different
from or in addition to those available to the indemnifying party,
(3) a conflict or potential conflict exists (based upon advice of
counsel to the indemnified party) between the indemnified party and
the indemnifying party (in which case the indemnifying party will
not have the right to direct the defense of such action on behalf
of the indemnified party) or (4) the indemnifying party has not in
fact employed counsel reasonably satisfactory to the indemnified
party to assume the defense of such action within a reasonable time
after receiving notice of the commencement of the action, in each
of which cases the reasonable fees, disbursements and other charges
of counsel will be at the expense of the indemnifying party or
parties. It is understood that the indemnifying party or parties
shall not, in connection with any proceeding or related proceedings
in the same jurisdiction, be liable for the reasonable fees,
disbursements and other charges of more than one separate firm of
attorneys (in addition to any local counsel) at any one time for
all such indemnified party or parties. Each indemnified party, as a
condition of the indemnity agreements contained in Sections 6(a)
and 6(b), shall use its reasonable efforts to cooperate with the
indemnifying party in the defense of any such action or claim. No
indemnifying party shall be liable for any settlement of any such
action effected without its written consent (which consent shall
not be unreasonably withheld), but if settled with its written
consent or if there be a final judgment for 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. Notwithstanding
the foregoing sentence, if at any time an indemnified party shall
have requested an indemnifying party to reimburse the indemnified
party for fees and expenses or counsel as contemplated by this
section, the indemnifying party agrees that it shall be liable for
any settlement of any proceeding effected without its written
consent if (i) such settlement is entered into more than 45 days
after receipt by such indemnifying party of a request in writing
setting forth proposed settlement terms from the indemnified party
and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with the aforesaid request prior to
the date of such settlement. No indemnifying party shall, without
the prior written consent of the indemnified party (which consent
shall not be unreasonably withheld), effect any settlement of any
pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such
settlement (i) includes an unconditional release of such
indemnified party from all liability on claims that are the subject
matter of such proceeding and (ii) does not include a statement or
admission of fault, culpability or a failure to act, by or on
behalf of the indemnified party.
15
(d) The
provisions of this Section 6 and Section 7 shall remain in full
force and effect, regardless of any investigation made by or on
behalf of any Notice Holder, the Company, or any of the indemnified
Persons referred to in this Section 6 and Section 7, and shall
survive the sale by a Notice Holder of Registrable Securities
covered by the Shelf Registration Statement.
7. Contribution.
If the indemnification provided for in Section 6
is unavailable or insufficient to hold harmless an indemnified
party under Section 6(a) or 6(b), then 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 shall be appropriate to reflect
the relative benefits received by the Company from the offering and
sale of the Notes, on the one hand, and a Holder with respect to
the sale by such Holder of Registrable Securities, on the other, 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 such Holder on the other with respect to the statements or
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
(before deducting expenses) received by or on behalf of the
Company, on the one hand, and the total net proceeds (before
deducting expenses) received by such Holder upon a resale of the
Registrable Securities, on the other, bear to the total gross
proceeds from the sale of all Registrable Securities pursuant to
the Shelf Registration Statement in the offering of the Registrable
Securities from which the contribution claim arises. The relative
fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact
relates to the Company or information supplied by the Company on
the one hand or to any information contained in the relevant Notice
and Questionnaire supplied by such Holder on the other, the intent
of the parties and their relative knowledge, access to information
and opportunity to correct or prevent such untrue statement or
omission. The Notice Holders’ respective obligations to
contribute pursuant to this Section 7 are several in proportion to
the respective number of Registrable Securities they have sold
pursuant to the Shelf Registration Statement and not joint. The
parties hereto agree that it would not be just and equitable if
contributions pursuant to this Section 7 were to be determined
by pro
rata allocation or by any other
method of allocation that does not take into account the equitable
considerations referred to herein. 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 7 shall be deemed to include, for purposes of this Section
7, 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 7, an indemnifying party that is a
Holder shall not be required to contribute any amount in excess of
the amount by which the total price at which the Registrable
Securities sold by such indemnifying party to any purchaser exceeds
the amount of any damages which such indemnifying party has
otherwise paid or become liable 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.
16
8. Information
Requirements.
The
Company covenants that, if at any time before the end of the
Effective Period the Company is not subject to the reporting
requirements of the Exchange Act, it will cooperate with any Holder
and take such further customary action as any Holder may reasonably
request in writing (including, without limitation, making such
representations as any such Holder may reasonably request), all to
the extent required from time to time to enable such Holder to sell
Registrable Securities without registration under the Securities
Act within the limitation of the exemptions provided by Rule 144
and Rule 144A under the Securities Act and customarily taken in
connection with sales pursuant to such exemptions. Upon the written
request of any Holder, the Company shall deliver to such Holder a
written statement as to whether it has complied with such filing
requirements, unless such a statement has been included in the
Company’s most recent report filed pursuant to Section 13 or
Section 15(d) of Exchange Act. Notwithstanding the foregoing,
nothing in this Section 8 shall be deemed to require the Company to
register any of its securities under any section of the Exchange
Act.
9. Miscellaneous.
(a) Amendments
and Waivers. The provisions of
this Agreement may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may
not be given, unless the Company has obtained the written consent
of the Majority Holders. 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 whose
Registrable Securities are being sold pursuant to the Shelf
Registration Statement and that does not directly or indirectly
affect the rights of other Holders may be given by Holders of a
majority in aggregate amount of the Registrable Securities being
sold by such Holders pursuant to the Shelf Registration
Statement; provided that such aggregate amount, with respect to such
Registrable Securities that are Notes will be based on the
aggregate principal amount of such Notes that are Registrable
Securities, and with respect to such Registrable Securities that
are Shares, will be based on the average of the Last Reported Sale
Prices of the Company’s Common Stock for each of five
consecutive trading days ending on a date chosen by the Company in
a reasonable manner to effect the intent of this Agreement
multiplied by the number of such Registrable Securities that are
Shares. Notwithstanding the foregoing sentence, (i) this Agreement
may be amended by written agreement signed by the Company and the
Initial Holders, without the consent of the Holders, to cure any
ambiguity or to correct or supplement any provision contained
herein that may be defective or inconsistent with any other
provision contained herein, or to make such other provisions in
regard to matters or questions arising under this Agreement that
shall not adversely affect the interests of the Holders. 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 9(a), 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.
17
(b) Notices.
All notices and other communications provided for or permitted
hereunder shall be made in writing by hand-delivery, first-class
mail, telecopier or air courier guaranteeing next-day
delivery:
(1) If
to the Company, initially at the address set forth in the
Indenture; and
(2) If
to a Holder, to the address of such Holder set forth in the
register (described in Section 2.06 of the Indenture), the Notice
and Questionnaire or other records of the Company.
All
such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; one (1)
Business Day after being delivered to a next-day air courier; five
(5) Business Days after being deposited in the mail, if being
delivered by first-class mail; and when receipt is acknowledged by
the recipient’s telecopier machine, if sent by
telecopier.
Notwithstanding
the foregoing, the notice required pursuant to Section 3(a)(i)
shall be given in the same manner that notices are required to be
delivered to holders of Notes pursuant to the
Indenture.
(c) Successors
and Assigns. This Agreement
shall be binding upon the Company and each of its successors and
assigns. Any Person who purchases any Securities from any Initial
Holder shall be deemed, for purposes of this Agreement, to be an
assignee of such Initial Holder. 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, provided that
nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Registrable
Securities in violation of the terms of the Indenture. If any
transferee of any Holder shall acquire Registrable Securities, in
any manner, whether by operation of law or otherwise, such
Registrable Securities shall be held subject to all of the terms of
this Agreement, and by taking and holding such Registrable
Securities, such Person shall be conclusively deemed to have agreed
to be bound by and to perform all of the terms and provisions of
this Agreement and such Person shall be entitled to receive the
benefits hereof.
(d) Counterparts.
This Agreement may be executed in any number of counterparts (which
may be delivered in original form or by telecopier) 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.
(e) Headings.
The headings in this Agreement are for convenience of reference
only and shall not limit or otherwise affect the meaning
hereof.
(f) Governing
Law. THIS AGREEMENT SHALL BE
DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF NEW YORK, AND FOR
ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF NEW
YORK (WITHOUT REGARD TO THE CONFLICTS OF LAWS PROVISIONS
THEREOF).
(g) Remedies.
In the event of a breach by the Company or by any Holder of any of
their respective obligations under this Agreement, each Holder or
the Company, as the case may be, in addition to being entitled to
exercise all rights granted by law, including recovery of damages
(other than the recovery of damages for a breach by the Company of
its obligations under Section 3 hereof for which Additional
Interest has been paid pursuant to Section 2 hereof), will be
entitled to specific performance of its rights under this
Agreement. The Company and each Holder agree that monetary damages
would not be adequate compensation for any loss incurred by reason
of a breach by it of any of the provisions of this Agreement and
hereby further agree that, in the event of any action for specific
performance in respect of such breach, it shall waive the defense
that a remedy at law would be adequate.
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(h) No
Inconsistent Agreements. The
Company represents, warrants and agrees that (i) it has not entered
into and shall not on or after the date of this Agreement enter
into any agreement that is inconsistent with the rights granted to
the Holders in this Agreement or otherwise conflicts with the
provisions hereof, (ii) it has not previously entered into any
agreement which remains in effect and does not currently
contemplate entering into any agreement granting any registration
rights with respect to any of its debt securities to any Person
other than this Agreement and (iii) without limiting the generality
of the foregoing, without the written consent of the Majority
Holders, it shall not grant to any Person the right to request the
Company to register any securities of the Company under the
Securities Act unless the rights so granted are not in conflict or
inconsistent with the provisions of this
Agreement.
(i) Piggyback
on Registrations. The Company
may grant registration rights that would permit any person that is
a third party the right to piggyback on any Shelf Registration
Statement, provided that if the managing underwriter, if any, of
any underwritten offering conducted pursuant to Section 4(c) hereof
notifies the Company that the total amount of securities which the
Notice Holders and the holders of such piggyback 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 piggyback 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; provided that it would not be a default under the
agreements granting such piggyback rights to make such reduction;
provided further that to the extent it would be such a default
under any such agreement to make such reduction, the Company will
use its commercially reasonable efforts to obtain appropriate
waivers.
(j) Severability.
The remedies provided herein are cumulative and not exclusive of
any remedies provided by law. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent
jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set
forth herein shall remain in full force and effect and shall in no
way be affected, impaired or invalidated, and the parties hereto
shall use their commercially reasonable efforts to find and employ
an alternative means to achieve the same or substantially the same
result as that contemplated by such term, provision, covenant or
restriction. It is hereby stipulated and declared to be the
intention of the parties that they would have executed the
remaining terms, provisions, covenants and restrictions without
including any term, provision, covenant or restriction that may be
hereafter declared invalid, illegal, void or
unenforceable.
(k) Survival.
The respective indemnities, agreements, representations, warranties
and each other provision set forth in this Agreement or made
pursuant hereto shall remain in full force and effect regardless of
any investigation (or statement as to the results thereof) made by
or on behalf of any Holder, any director, officer or partner of
such Holder, any agent or underwriter or any director, officer or
partner thereof, or any controlling Person of any of the foregoing,
and shall survive (x) the delivery and payment for the Notes
pursuant to the Exchange and Subscription Agreement and (y) the
transfer and registration of Registrable Securities by holders of
Registrable Securities.
(l) Securities
Held by the Company, etc. Whenever the consent or approval of Holders of a
specified percentage of Securities is required hereunder,
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 holdings of such Securities)
shall not be counted in determining whether such consent or
approval was given by the Holders of such required
percentage.
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If the
foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us a counterpart hereof,
whereupon this instrument will become a binding agreement between
the Company and the Initial Holders in accordance with its
terms.
Very
truly yours,
THE COMPANY
By:
Name:
Title:
Accepted: January 14, 2020
___________________________
By:
Name:
Title:
___________________________
By:
Name:
Title:
By:
Name:
Title:
___________________________
By:
Name:
Title:
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___________________________
By:
Name:
Title:
___________________________
By:
Name:
Title:
21
Annex A
Form of Selling Stockholder
Notice and Questionnaire
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