BANC OF AMERICA SECURITIES LLCJ.P. MORGAN SECURITIES INC. $250,000,000 AGGREGATE PRINCIPAL AMOUNT CHARMING SHOPPES, INC.
EXHIBIT
10.1
BANC
OF AMERICA SECURITIES LLCJ.▇.
▇▇▇▇▇▇ SECURITIES INC.
$250,000,000
AGGREGATE PRINCIPAL AMOUNT
CHARMING
SHOPPES, INC.
1.125%
SENIOR CONVERTIBLE NOTES
DUE
2014
dated
April 30, 2007
REGISTRATION
RIGHTS AGREEMENT, dated as of April 30, 2007, among Charming Shoppes, Inc.,
a
Pennsylvania corporation (together with any successor entity, herein referred
to
as the “Company”),
Banc
of America Securities LLC and ▇.▇. ▇▇▇▇▇▇ Securities Inc., as representatives
(the “Representatives”)
of the
several initial purchasers (the “Initial
Purchasers”)
under
the Purchase Agreement (as defined below).
Pursuant
to the Purchase Agreement, dated as of April 24, 2007, between the Company
and
the Representatives (the “Purchase
Agreement”),
relating to the initial placement (the “Initial
Placement”)
of the
Notes (as defined below), the Initial Purchasers have agreed to purchase from
the Company $250,000,000 ($275,000,000 if the Initial Purchasers exercise their
over-allotment option in full) in aggregate principal amount of 1.125% Senior
Convertible Notes due 2014 (the “Notes”).
The
Notes will be convertible, subject to the terms thereof, into cash and fully
paid, nonassessable shares of common stock, par value $0.10 per share, if any,
of the Company (the “Common
Stock”),
unless the Company elects to satisfy its entire conversion obligation in shares
of Common Stock. The Notes will be convertible on the terms, and subject to
the
conditions, set forth in the Indenture (as defined herein). To induce the
Initial Purchasers to purchase the Notes, the Company has agreed to provide
the
registration rights set forth in this Agreement pursuant to Section 5(g) of
the
Purchase Agreement.
The
parties hereby agree as follows:
1. Definitions.
Capitalized
terms used in this Agreement without definition shall have their respective
meanings set forth in the Purchase Agreement. As
used
in this Agreement, the following capitalized terms shall have the following
meanings:
“Additional
Amounts”:
As
defined in Section 3(a) hereof.
“Additional
Amounts Payment Date”:
Each
November 1 and May 1.
“Affiliate”
of
any
specified person means any other person that, 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.
“Agreement”:
This
Registration Rights Agreement.
“Amendment
Effectiveness Deadline Date”
As
defined in Section 2(f)(i) hereof.
“Automatic
Shelf Registration Statement”:
An
automatic shelf registration statement within the meaning of Rule 405 under
the
Securities Act.
“Blue
Sky Application”:
As
defined in Section 6(a)(i) hereof.
“Business
Day”:
The
definition of “Business Day” in the Indenture.
“Closing
Date”:
The
date of the first issuance of the Notes.
“Commission”:
Securities and Exchange Commission.
“Common
Stock”:
As
defined in the preamble hereto.
“Company”:
As
defined in the preamble hereto.
“Effectiveness
Period”:
As
defined in Section 2(a)(iii) hereof.
“Effectiveness
Target Date”:
As
defined in Section 2(a)(ii) hereof.
“Exchange
Act”:
Securities Exchange Act of 1934, as amended.
“Holder”:
A
Person who owns, beneficially or otherwise, Transfer Restricted
Securities.
“Indemnified
Holder”:
As
defined in Section 6(a) hereof.
“Indenture”:
The
Indenture, dated as of April 30, 2007 between the Company and ▇▇▇▇▇ Fargo Bank,
National Association, as trustee (the “Trustee”),
pursuant to which the Notes are to be issued, as such Indenture is amended,
modified or supplemented from time to time in accordance with the terms
thereof.
“Initial
Placement”:
As
defined in the preamble hereto.
“Initial
Purchasers”:
As
defined in the preamble hereto.
“Losses”:
As
defined in Section 6(e) hereof.
“Majority
of Holders”:
Holders holding over 50% of the aggregate principal amount of Notes outstanding;
provided
that,
for the purpose of this definition, a holder of shares of Common Stock which
constitute Transfer Restricted Securities and were issued upon conversion of
the
Notes shall be deemed to hold an aggregate principal amount of the Notes (in
addition to the principal amount of the Notes held by such holder) equal to
the
quotient of (x) the number of such shares of Common Stock held by such holder
and (y) the conversion rate in effect at the time of such conversion as
determined in accordance with the Indenture.
“Managing
Underwriter”:
The
investment banker or investment bankers and manager or managers that administer
an underwritten offering, if any, conducted pursuant to Section 8
hereof.
“NASD”:
National Association of Securities Dealers, Inc.
“Notes”:
As
defined in the preamble hereto.
“Notice
and Questionnaire”:
A
written notice executed by a Holder and delivered to the Company containing
substantially the information called for by the Form of Selling Securityholder
Notice and Questionnaire attached as Annex A to the Offering Memorandum of
the
Company relating to the Notes.
“Notice
Holder”:
On any
date, any Holder of Transfer Restricted Securities that has delivered a Notice
and Questionnaire to the Company on or prior to such date.
“Person”:
An
individual, partnership, corporation, company, unincorporated organization,
trust, joint venture or a government or agency or political subdivision thereof,
or another entity.
“Prospectus”:
The
prospectus included in a Shelf Registration Statement, as amended or
supplemented by any prospectus supplement and by all other amendments thereto,
including post-effective amendments, and all material incorporated by reference
into such prospectus.
“Purchase
Agreement”:
As
defined in the preamble hereto.
“Record
Holder”:
With
respect to any Additional Amounts Payment Date, each Person who is a Holder
on
the Interest Record Date (as defined in the Indenture) for the Notes immediately
preceding the relevant Additional Amounts Payment Date. In the case of a Holder
of shares of Common Stock issued upon conversion of the Notes, “Record Holder”
shall mean each Person who is a Holder of shares of Common Stock which
constitute Transfer Restricted Securities on the Interest Record
Date.
“Registration
Default”:
As
defined in Section 3(a) hereof.
“Representatives”:
As
defined in the preamble hereto.
“Securities
Act”:
The
Securities Act of 1933, as amended.
“Shelf
Filing Deadline”:
As
defined in Section 2(a)(i) hereof.
“Shelf
Registration Statement”:
As
defined in Section 2(a)(i) hereof.
“Subsequent
Shelf Registration Statement”:
As
defined in Section 2(c) hereof.
“Suspension
Notice”:
As
defined in Section 4(c) hereof.
“Suspension
Period”:
As
defined in Section 4(b)(ii) hereof.
“TIA”:
Trust
Indenture Act of 1939, as amended, and the rules and regulations of the
Commission thereunder, in each case, as in effect on the date the Indenture
is
qualified under the TIA.
“Transfer
Restricted Securities”:
Each
Note and each share of Common Stock issued upon conversion of Notes until the
earliest of:
(i) the
date
on which such Note or such share of Common Stock issued upon conversion has
been
effectively registered under the Securities Act and disposed of in accordance
with the Shelf Registration Statement or a Subsequent Shelf Registration
Statement;
(ii) the
date
on which such Note or such share of Common Stock issued upon conversion is
transferred in compliance with Rule 144 under the Securities Act or may be
sold
or transferred by a Person who is not an Affiliate of the Company pursuant
to
Rule 144 under the Securities Act (or any other similar provision then in force)
without any volume or manner of sale restrictions thereunder; or
(iii) the
date
on which such Note or such share of Common Stock issued upon conversion ceases
to be outstanding (whether as a result of redemption, repurchase and
cancellation, conversion or otherwise).
“Underwriter”:
Any
underwriter of Notes in connection with an offering thereof under the Shelf
Registration Statement.
“WKSI”:
A
“well known seasoned issuer” as defined in Rule 405 under the Securities
Act.
“Underwritten
Registration”:
A
registration in which Notes of the Company are sold to an underwriter for
reoffering to the public.
Unless
the context otherwise requires, the singular includes the plural, and words
in
the plural include the singular.
2. Shelf
Registration.
(a) The
Company shall:
(i) as
promptly as practicable (but in no event more than 120 days after the Closing
Date) (the “Shelf
Filing Deadline”),
cause
to be filed a registration statement pursuant to Rule 415 under the Securities
Act or any similar rule that may be adopted by the Commission (the “Shelf
Registration Statement”),
which
Shelf Registration Statement shall be an Automatic Shelf Registration Statement
if the Company is then a WKSI and shall provide for the registration and
resales, on a continuous or delayed basis, of all Transfer Restricted Securities
held by Holders that have provided the information required pursuant to the
terms of Section 2(b) hereof;
(ii) if
the
Company is not a WKSI when the shelf registration statement is filed and
therefore did not file an Automatic Shelf Registration Statement, use its
reasonable efforts to cause the Shelf Registration Statement to be declared
effective under the Securities Act by the Commission not later than 210 days
after the date hereof (the “Effectiveness
Target Date”);
and
(iii) use
its
reasonable efforts to keep the Shelf Registration Statement continuously
effective, supplemented and amended as required by the Securities Act and by
the
provisions of Section 4(b) hereof to the extent necessary to ensure that it
(A)
is available for resales by the Holders of Transfer Restricted Securities
entitled, subject to Section 2(b), to the benefit of this Agreement and (B)
conforms with the requirements of this Agreement and the Securities Act and
the
rules and regulations of the Commission promulgated thereunder as announced
from
time to time, for a period (the “Effectiveness
Period”)
from
the date the Shelf Registration Statement becomes or is declared effective
by
the Commission until the earlier of:
(1) the
date
when the Holders of Transfer Restricted Securities are able to sell all such
Transfer Restricted Securities immediately without restriction pursuant to
Rule
144(k) under the Securities Act; or
(2) the
date
when (a) all of the Transfer Restricted Securities of those Holders that
complete and deliver in a timely manner the Notice and Questionnaire described
below are registered under the Shelf Registration Statement and disposed of
in
accordance with the Shelf Registration Statement or pursuant to Rule 144(k)
under the Securities Act or any similar rule that may be adopted by the
Commission or (b) the Transfer Restricted Securities cease to be
outstanding.
The
Company shall be deemed not to have used its reasonable efforts to keep the
Shelf Registration Statement effective during the Effectiveness Period if it
voluntarily takes any action that would result in Holders of Transfer Restricted
Securities not being able to offer and sell such Securities at any time during
the Effectiveness Period, unless such action is (x) required by applicable
law
or otherwise undertaken by the Company in good faith and for valid business
reasons (not including avoidance of the Company’s obligations hereunder),
including the acquisition or divestiture of assets, and (y) permitted by Section
4(b)(ii) hereof.
(b) At
the
time the Shelf Registration Statement becomes or is declared effective, each
Holder that became a Notice Holder on or prior to the date ten (10) Business
Days prior to such time of effectiveness shall be named as a selling
securityholder in the Shelf Registration Statement and the related Prospectus
in
such a manner as to permit such Holder to deliver such Prospectus to purchasers
of Transfer Restricted Securities in accordance with applicable law. None of
the
Company’s securityholders (other than the Holders of Transfer Restricted
Securities) shall have the right to include any of the Company’s securities in
the Shelf Registration Statement.
(c) If
the
Shelf Registration Statement or any Subsequent Shelf Registration Statement
ceases to be effective for any reason at any time during the Effectiveness
Period (other than because all Transfer Restricted Securities registered
thereunder shall have been resold pursuant thereto or shall have otherwise
ceased to be Transfer Restricted Securities), the Company shall use its
reasonable best efforts to obtain the prompt withdrawal of any order suspending
the effectiveness thereof or file an additional Shelf Registration Statement
(which shall be an Automatic Shelf Registration Statement if the Company is
then
a WKSI) covering all of the securities that as of the date of such filing are
Transfer Restricted Securities ( a “Subsequent
Shelf Registration Statement”).
If a
Subsequent Shelf Registration Statement is filed and is not an Automatic Shelf
Registration Statement, the Company shall use its reasonable best efforts to
cause the Subsequent Shelf Registration Statement to become effective as
promptly as is practicable after such filing and to keep such Shelf Registration
Statement (or Subsequent Shelf Registration Statement) continuously effective
until the end of the Effectiveness Period.
(d) The
Company shall supplement and amend the Shelf Registration Statement if required
by the rules, regulations or instructions applicable to the registration form
used by the Company for such Shelf Registration Statement, if required by the
Securities Act.
(e) The
Company shall cause the Shelf Registration Statement and the related Prospectus
and any amendment or supplement thereto, as of the effective date of the Shelf
Registration Statement or 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 light of the circumstances
under which they were made) not misleading.
(f) Each
Holder agrees that if such Holder wishes to sell Transfer Restricted Securities
pursuant to a Shelf Registration Statement and related Prospectus, it will
do so
only in accordance with this Section 2(f) and Section 4(b). Each Holder wishing
to sell Transfer Restricted Securities pursuant to a Shelf Registration
Statement and related Prospectus agrees to deliver a Notice and Questionnaire
to
the Company at least ten (10) Business Days prior to any intended distribution
of Transfer Restricted Securities under the Shelf Registration Statement. From
and after the date the Shelf Registration Statement becomes or is declared
effective, the Company shall, as promptly as practicable after the date a Notice
and Questionnaire is delivered to it:
(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 securityholder in the Shelf Registration Statement and the related
Prospectus in such a manner as to permit such Holder to deliver such Prospectus
to purchasers of the Transfer Restricted Securities in accordance with
applicable law and, if the Company shall file a post-effective amendment to
the
Shelf Registration Statement and if such Shelf Registration Statement is not
an
Automatic Shelf Registration Statement, use its reasonable best efforts to
cause
such post-effective amendment to be declared effective under the Securities
Act
as promptly as is practicable, but in any event by the date (the “Amendment
Effectiveness Deadline Date”)
that
is forty-five (45) days after the date such post effective amendment is required
by this clause to be filed;
(ii) provide
such Holder copies of any documents filed pursuant to Section 2(f)(i);
and
(iii) notify
such Holder as promptly as practicable after the effectiveness under the
Securities Act of any post-effective amendment filed pursuant to Section
2(f)(i);
provided
that if
such Notice and Questionnaire is delivered during a Suspension Period, the
Company shall so inform the Holder delivering such Notice and Questionnaire
and
shall take the actions set forth in clauses (i), (ii) and (iii) above upon
expiration of the Suspension Period in accordance with Section 4(b).
Notwithstanding anything contained herein to the contrary, (i) the Company
shall
be under no obligation to name any Holder that is not a Notice Holder as a
selling securityholder in any Registration Statement or related Prospectus
and
(ii) the Amendment Effectiveness Deadline Date shall be extended by up to
fifteen (15) Business Days from the Expiration of a Suspension Period (and
the
Company shall incur no obligation to pay Additional Amounts during such
extension) if such Suspension Period shall be in effect on the Amendment
Effectiveness Deadline Date.
3. Additional
Amounts.
(a) If:
(i) the
Shelf
Registration Statement is not filed with the Commission and, if the Company
is
then a WKSI, does not become automatically effective prior to or on the Shelf
Filing Deadline;
(ii) the
Company is not a WKSI on the Shelf Filing Deadline, and the Shelf Registration
Statement has not been declared effective by the Commission prior to or on
the
Effectiveness Target Date;
(iii) the
Company has failed to perform its obligations set forth in Section 2(f) within
the time period required therein;
(iv) any
post-effective amendment to a Shelf Registration filed pursuant to Section
2(f)(i) has not become effective under the Securities Act on or prior to the
Amendment Effectiveness Deadline Date;
(v) except
as
provided in Section 4(b)(i) hereof, the Shelf Registration Statement becomes
or
is declared effective but, during the Effectiveness Period, shall thereafter
cease to be effective or fail to be usable for its intended purpose without
being succeeded within ten (10) Business Days by a post-effective amendment
to
the Shelf Registration Statement, a supplement to the Prospectus or a report
filed with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of
the
Exchange Act that cures such failure and, in the case of a post-effective
amendment, is itself immediately declared effective; or
(vi) Suspension
Periods exceed an aggregate of 45 or 60 days, as the case may be, within any
90-day period or an aggregate of 120 days in any 360-day period;
(each
such event referred to in foregoing clauses (i) through (vi), a “Registration
Default”),
the
Company hereby agrees to pay interest (“Additional
Amounts”)
with
respect to Notes that are Transfer Restricted Securities from and including
the
day following the Registration Default to but excluding the earlier of (1)
the
day on which the Registration Default has been cured and (2) the date the Shelf
Registration Statement is no longer required to be kept effective, accruing
at a
rate:
(A) in
respect of the Notes that are Transfer Restricted Securities to each Holder
of
such Notes, (x) with respect to the first 90-day period during which a
Registration Default shall have occurred and be continuing, equal to 0.25%
per
annum of the aggregate principal amount of the Notes, and (y) with respect
to
the period commencing on the 91st day following the day the Registration Default
shall have occurred and be continuing, equal to 0.50% per annum of the aggregate
principal amount of the Notes; provided
that in
no event shall Additional Amounts accrue at a rate per year exceeding 0.50%
of
the aggregate principal amount of the Notes; and
(B) in
respect of the Notes that are Transfer Restricted Securities submitted for
conversion into Common Stock during the existence of a Registration Default
with
respect to the Common Stock, the Holder will not be entitled to receive any
Additional Amounts with respect to such Common Stock but will receive from
the
Company on the settlement date with respect to such conversion, accrued and
unpaid Additional Amounts to the Holders of such Notes calculated in accordance
with paragraph (A) to the Conversion Date (as defined in the Indenture) relating
to such settlement date; and
(C) a
Holder
of Common Stock, if any, issued upon conversion of the Notes will not be
entitled to any Additional Amounts if the Registration Default with respect
to
such Common Stock occurs after such Holder has converted the Notes into Common
Stock.
(b) All
accrued Additional Amounts, except for Additional Amounts paid under the
circumstances set forth in paragraph (B) of Section 3(a) above, shall be paid
in
arrears to Record Holders by the Company on each Additional Amounts Payment
Date. Upon the cure of all Registration Defaults relating to any particular
Note, the accrual of Additional Amounts with respect to such Note will
cease.
All
obligations of the Company set forth in this Section 3 that are outstanding
with
respect to any Note that is a Transfer Restricted Security at the time such
security ceases to be a Transfer Restricted Security shall survive until such
time as all such obligations with respect to such Transfer Restricted Security
shall have been satisfied in full.
The
Additional Amounts set forth above shall be the exclusive monetary remedy
available to the Holders of Notes that are Transfer Restricted Securities for
each Registration Default.
4. Registration
Procedures.
(a) In
connection with the Shelf Registration Statement, the Company shall comply
with
all the provisions of Section 4(b) hereof and shall use its reasonable best
efforts to effect such registration to permit the sale of the Transfer
Restricted Securities, and pursuant thereto, shall as promptly as practicable
prepare and file with the Commission a Shelf Registration Statement relating
to
the registration on any appropriate form under the Securities Act.
(b) In
connection with the Shelf Registration Statement and any Prospectus required
by
this Agreement to permit the sale or resale of Transfer Restricted Securities,
the Company shall:
(i) subject
to any notice by the Company in accordance with this Section 4(b) of the
existence of any fact or event of the kind described in Section 4(b)(iv)(D),
use
its reasonable efforts to keep the Shelf Registration Statement continuously
effective during the Effectiveness Period; upon the occurrence of any event
that
would cause the Shelf Registration Statement or the Prospectus contained therein
(A) to contain a material misstatement or omission or (B) not to be effective
and usable for resale of Transfer Restricted Securities during the Effectiveness
Period, the Company shall file promptly an appropriate amendment to the Shelf
Registration Statement, a supplement to the Prospectus or a report filed with
the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act, in the case of clause (A), correcting any such misstatement or omission,
and, in the case of either clause (A) or (B), if such amendment does not become
automatically effective upon filing with the Commission, use its reasonable
best
efforts to cause such amendment to be declared effective and the Shelf
Registration Statement and the related Prospectus to become usable for their
intended purposes as soon as practicable thereafter.
(ii) notwithstanding
Section 4(b)(i) hereof, the Company may suspend the effectiveness of the Shelf
Registration Statement (each such period, a “Suspension
Period”):
(x)
if an
event occurs and is continuing as a result of which the Shelf Registration
Statement, the Prospectus, any amendment or supplement thereto, or any document
incorporated by reference therein would, in the Company’s judgment, 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
(y)
if
the Company determines in good faith that the disclosure of a material event
at
such time would be seriously detrimental to the Company and its
subsidiaries.
Upon
the
occurrence of any event described in clauses (x) and (y) of this Section
4(b)(ii), the Company shall give notice to the Holders that the availability
of
the Shelf Registration is suspended and, upon actual receipt of any such notice,
each Holder agrees not to sell any Transfer Restricted Securities pursuant
to
the Shelf Registration until such ▇▇▇▇▇▇’s receipt of copies of the supplemented
or amended Prospectus provided for in Section 4(b) hereof. The period during
which the availability of the Shelf Registration and any Prospectus is suspended
(the “Suspension Period”) shall not exceed 45 days in any 90-day period,
provided
that, in
the event the disclosure relates to a previously undisclosed proposed or pending
material business transaction, the disclosure of which the Company determines
in
good faith would be reasonably likely to impede the Company’s ability to
consummate such transaction, the Company may extend a Suspension Period from
45
days to 60 days; provided,
further,
that
Suspension Periods shall not exceed an aggregate of 120 days in any 360-day
period. The Company shall not be required to specify in the written notice
to
the Holders the nature of the event giving rise to the Suspension
Period.
(iii) prepare
and file with the Commission such amendments and post-effective amendments
to
the Shelf Registration Statement as may be necessary to keep the Shelf
Registration Statement effective during the Effectiveness Period; cause the
Prospectus to be supplemented by any required Prospectus supplement, and as
so
supplemented to be filed pursuant to Rule 424 under the Securities Act, and
to
comply fully with the applicable provisions of Rules 424 under the Securities
Act in a timely manner; and comply with the provisions of the Securities Act
with respect to the disposition of all Transfer Restricted Securities covered
by
the Shelf Registration Statement during the applicable period in accordance
with
the intended method or methods of distribution by the sellers thereof set forth
in the Shelf Registration Statement or supplement to the
Prospectus.
(iv) advise
the selling Holders and any Initial Purchaser that has provided in writing
to
the Company a telephone or facsimile number and address for notices, promptly
and, if requested by such selling Holders or Initial Purchaser, to confirm
such
advice in writing (which notice pursuant to clauses (B) through (D) below shall
be accompanied by an instruction to suspend the use of the Prospectus until
the
Company shall have remedied the basis for such suspension):
(A) when
the
Prospectus or any Prospectus supplement or post-effective amendment has been
filed, and, with respect to the Shelf Registration Statement or any
post-effective amendment thereto, when the same has become
effective,
(B) of
any
request by the Commission for amendments to the Shelf Registration Statement
or
amendments or supplements to the Prospectus or for additional information
relating thereto; provided,
however,
that
notice of any such request provided to the Depository Trust Company and the
Trustee shall be deemed to be provided to all of the Notice Holders and the
Initial Purchasers,
(C) of
the
issuance by the Commission of any stop order suspending the effectiveness of
the
Shelf Registration Statement under the Securities Act or of the suspension
by
any state securities commission of the qualification of the Transfer Restricted
Securities for offering or sale in any jurisdiction, or the threatening or
initiation of any proceeding for any of the preceding purposes, or
(D) of
the
happening of any event or the failure of any event to occur or the discovery
of
any facts, during the Effectiveness Period, which makes any statement made
in a
Shelf Registration Statement, the related Prospectus, any amendment or
supplement thereto or any document incorporated by reference therein untrue
in
any material respect or which causes such document(s) to omit to state a
material fact 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.
(v) if
at any
time the Commission shall issue any stop order suspending the effectiveness
of
the Shelf Registration Statement, or any state securities commission or other
regulatory authority shall issue an order suspending the qualification or
exemption from qualification of the Transfer Restricted Securities under state
securities or Blue Sky laws, use its reasonable best efforts to obtain the
withdrawal or lifting of such order at the earliest possible time and shall
provide to each Holder who is named in the Shelf Registration Statement prompt
notice of the withdrawal of any such order.
(vi) make
available at reasonable times for inspection by one or more representatives
of
the selling Holders, designated in writing by a Majority of Holders whose
Transfer Restricted Securities are included in the Shelf Registration Statement,
and any attorney or accountant retained by such selling Holders and any Initial
Purchaser participating in any disposition pursuant to the Shelf Registration
Statement, all financial and other records, pertinent corporate documents and
properties of the Company as shall be reasonably necessary to enable them to
conduct a reasonable investigation within the meaning of Section 11 of the
Securities Act, and cause the Company’s officers, directors, managers and
employees to supply all information reasonably requested by any such
representative or representatives of the selling Holders, attorney or accountant
in connection therewith; provided
that,
subject to Section 4(b)(i), (x) appropriate safeguards are in place to protect
the confidentiality of such information and (y) in no event shall the Company
be
required to disclose any proprietary information to any competitor or agent
thereof.
(vii) if
requested by any selling Holders or the Representatives, promptly incorporate
into the Shelf Registration Statement or Prospectus, pursuant to a supplement
or
post-effective amendment if necessary, such information as such selling Holders
may reasonably request to have included therein, including, without limitation,
information relating to the “Plan of Distribution” of the Transfer Restricted
Securities.
(viii) deliver
to each selling Holder, without charge, as many copies of the Prospectus
(including each preliminary Prospectus) and any amendment or supplement thereto
as such Persons reasonably may request; subject to any notice by the Company
in
accordance with this Section 4(b) of the existence of any fact or event of
the
kind described in Section 4(b)(iii)(D), the Company hereby consents to the
use
of the Prospectus and any amendment or supplement thereto by each of the selling
Holders in connection with the offering and the sale of the Transfer Restricted
Securities covered by the Prospectus or any amendment or supplement
thereto.
(ix) before
any public offering of Transfer Restricted Securities, cooperate with the
selling Holders and their counsel in connection with the registration and
qualification of the Transfer Restricted Securities under the securities or
Blue
Sky laws of such jurisdictions in the United States as the selling Holders
may
reasonably request and do any and all other acts or things necessary or
advisable to enable the disposition in such jurisdictions of the Transfer
Restricted Securities covered by the Shelf Registration Statement; provided,
however,
that
the Company shall not be required (A) to register or qualify as a foreign
corporation or a dealer of securities in any jurisdiction where it would not
otherwise be required to qualify but for this Section 4(b)(ix) or to take any
action that would subject it to the service of process in any jurisdiction
where
it would not otherwise be subject to such service of process or (B) to subject
itself to general or unlimited service of process or to taxation in any such
jurisdiction if it is not then so subject.
(x) unless
any Transfer Restricted Securities shall be in book-entry form only, cooperate
with the selling Holders to facilitate the timely preparation and delivery
of
certificates representing Transfer Restricted Securities to be sold and not
bearing any restrictive legends (unless required by applicable securities laws);
and enable such Transfer Restricted Securities to be in such denominations
and
registered in such names as the Holders may request at least two Business Days
before any sale of Transfer Restricted Securities.
(xi) use
its
reasonable best efforts to cause the Transfer Restricted Securities covered
by
the Shelf Registration Statement to be registered with or approved by such
other
U.S. governmental agencies or authorities as may be necessary to enable the
seller or sellers thereof to consummate the disposition of such Transfer
Restricted Securities.
(xii) subject
to Section 4(b)(ii) hereof, if any fact or event contemplated by Section
4(b)(iv)(B) through (D) hereof shall exist or have occurred, use its reasonable
best efforts to prepare a supplement or post-effective amendment to the Shelf
Registration Statement or related Prospectus or any document incorporated
therein by reference or file any other required document so that, as thereafter
delivered to the purchasers of Transfer Restricted Securities, the Prospectus
will not contain an untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances in which they are made, not
misleading.
(xiii) provide
CUSIP numbers for all Transfer Restricted Securities not later than the
effective date of the Shelf Registration Statement and provide the Trustee
under
the Indenture with certificates for the Notes that are in a form eligible for
deposit with The Depository Trust Company.
(xiv) cooperate
and assist in any filings required to be made with the NASD and in the
performance of any due diligence investigation by any underwriter that is
required to be undertaken in accordance with the rules and regulations of the
NASD.
(xv) otherwise
use its reasonable best efforts to comply with all applicable rules and
regulations of the Commission and all reporting requirements under the rules
and
regulations of the Exchange Act.
(xvi) make
generally available to its security holders an earnings statement satisfying
the
provisions of Section 11(a) of the Securities Act and Rule 158 of the Securities
Act as soon as practicable after the effective date of the Shelf Registration
Statement and in any event no later than 45 days after the end of a 12-month
period (or 90 days, if such period is a fiscal year) beginning with the first
month of the Company’s first fiscal quarter commencing after the effective date
of the Shelf Registration Statement.
(xvii) cause
the
Indenture to be qualified under the TIA not later than the effective date of
the
Shelf Registration Statement required by this Agreement, and, in connection
therewith, cooperate with the Trustee and the holders of Notes to effect such
changes to the Indenture as may be required for such Indenture to be so
qualified in accordance with the terms of the TIA; and execute and use its
reasonable best efforts to cause the Trustee thereunder to execute all documents
that may be required to effect such changes and all other forms and documents
required to be filed with the Commission to enable such Indenture to be so
qualified in a timely manner. In the event that any such amendment or
modification referred to in this Section 4(b)(xvii) involves the appointment
of
a new trustee under the Indenture, the Company shall appoint a new trustee
thereunder pursuant to the applicable provisions of the Indenture.
(xviii) cause
all
Common Stock 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 Common Stock is then listed or quoted.
(xix) provide
to each Holder upon written request each document filed with the Commission
pursuant to the requirements of Section 13 and Section 15 of the Exchange Act
after the effective date of the Shelf Registration Statement, unless such
document is available through the Commission’s ▇▇▇▇▇ system.
(xx) use
its
reasonable best efforts if the Notes have been rated prior to the initial sale
of such Notes, to confirm such ratings will apply to the Notes covered by the
Shelf Registration Statement.
(xxi) in
connection with any underwritten offering conducted pursuant to Section 8
hereof, make such representations and warranties to the Holders of Securities
registered thereunder and the underwriters, in form, substance and scope as
are
customarily made by issuers to underwriters in primary underwritten offerings
and covering matters including, but not limited to, those set forth in the
Purchase Agreement;
(xxii) in
connection with any underwritten offering conducted pursuant to Section 8
hereof, obtain opinions of counsel to the Company and updates thereof (which
counsel and opinions (in form, scope and substance) shall be reasonably
satisfactory to the Managing Underwriters) addressed to each selling Holder
and
the underwriters, if any, covering such matters as are customarily covered
in
opinions requested in underwritten offerings and such other matters as may
be
reasonably requested by such Holders and underwriters;
(xxiii) in
connection with any underwritten offering conducted pursuant to Section 8,
hereof, obtain “comfort” letters and updates thereof from the independent
certified public accountants of the Company (and, if necessary, any other
independent certified public accountants of any subsidiary of the Company or
of
any business acquired by the Company for which financial statements and
financial data are, or are required to be, included in the Shelf Registration
Statement), addressed to each selling Holder of Securities registered thereunder
and the underwriters, in customary form and covering matters of the type
customarily covered in “comfort” letters in connection with primary underwritten
offerings;
(xxiv) in
connection with any underwritten offering conducted pursuant to Section 8
hereof, deliver such documents and certificates as may be reasonably requested
by the Majority of Holders and the Managing Underwriters, including those to
evidence compliance with Section 4(b)(ii) and 4(b)(xii) hereof and with any
customary conditions contained in the Purchase Agreement or other agreement
entered into by the Company;
(xxv) in
connection with underwritten offering conducted pursuant to Section 8 hereof,
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 reasonably agree should be included
therein and to which the Company does not reasonably object 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;
(xxvi) use
its
reasonable best efforts to take all other steps necessary to effect the
registration of the Notes covered by the Shelf Registration Statement;
and
(xxvii) enter
into customary agreements (including, if requested, an underwriting agreement
in
customary form) and take all other appropriate actions in order to expedite
or
facilitate the registration or the disposition of the Notes, and in connection
therewith, if an underwriting agreement is entered into, cause the same to
contain indemnification provisions and procedures no less favorable than those
set forth in Section 6 hereof.
The
actions set forth in clauses (xxi), (xxii), (xxiii) and (xxiv) of this Section
4(b) shall be performed at (a) the effectiveness of the Shelf Registration
Statement and each post-effective amendment thereto; and (b) each closing under
any underwriting or similar agreement as and to the extent required
thereunder.
(c) Each
Holder agrees by acquisition of a Transfer Restricted Security that, upon
receipt of any notice (a “Suspension
Notice”)
from
the Company under Section 4(b)(ii) or the existence of any fact of the kind
described in Section 4(b)(iv)(D) hereof, such Holder will forthwith discontinue
disposition of Transfer Restricted Securities pursuant to the Shelf Registration
Statement until:
(i) such
Holder has received copies of the supplemented or amended Prospectus
contemplated by Section 4(b)(xii) hereof; or
(ii) such
Holder is advised in writing by the Company that the use of the Prospectus
may
be resumed, and has received copies of any additional or supplemental filings
that are incorporated by reference in the Prospectus; provided,
however,
that
any such document filed and publicly available through the Commission’s ▇▇▇▇▇
system shall be deemed to have been received by such Holder.
If
so
directed by the Company, each Holder will 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 Transfer Restricted
Securities that was current at the time of receipt of such notice of
suspension.
(d) Each
Holder agrees by acquisition of a Transfer Restricted Security, that no Holder
shall be entitled to sell any of such Transfer Restricted Securities pursuant
to
a Shelf Registration Statement; or to receive a Prospectus relating thereto,
unless such Holder has furnished the Company with a Notice and Questionnaire
as
required pursuant to Section 2(e) hereof (including the information required
to
be included in such Notice and Questionnaire) and the information set forth
in
the following two sentences. The Company may require each Notice Holder of
Transfer Restricted Securities to be sold pursuant to the Shelf Registration
Statement to furnish to the Company such information regarding the Holder and
the distribution of such Transfer Restricted Securities as the Company may
from
time to time reasonably require for inclusion in such Registration Statement.
Each Notice Holder agrees promptly to furnish to the Company all information
required to be disclosed in order to make the information previously furnished
to the Company by such Notice Holder not misleading and any other information
regarding such Notice Holder and the distribution of such Transfer Restricted
Securities as the Company may from time to time reasonably request in writing.
Any sale of any Transfer Restricted 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. The Company may exclude from such Shelf
Registration Statement the Notes of any Holder that unreasonably fails to
furnish such information within a reasonable time after receiving such
request.
5. Registration
Expenses.
All
expenses incident to the Company’s performance of or compliance with this
Agreement shall be borne by the Company regardless of whether a Shelf
Registration Statement becomes effective, including, without limitation:
(a) all
registration and filing fees and expenses (including filings made with the
NASD);
(b) all
fees
and expenses of compliance with federal securities and state Blue Sky or
securities laws;
(c) all
expenses of printing (including printing of Prospectuses and certificates for
any Common Stock to be issued upon conversion of the Notes) and the Company’s
expenses for messenger and delivery services and telephone;
(d) all
fees
and disbursements of counsel to the Company;
(e) all
application and filing fees in connection with listing (or authorizing for
quotation) the Common Stock on a national securities exchange or automated
quotation system pursuant to the requirements hereof; and
(f) all
fees
and disbursements of independent certified public accountants of the
Company.
The
Company shall bear its internal expenses (including, without limitation, all
salaries and expenses of its officers and employees performing legal, accounting
or other duties), the expenses of any annual audit and the fees and expenses
of
any Person, including special experts, retained by the Company. The Company
shall pay all expenses customarily borne by issuers in an underwritten offering
to the extent set forth in Section 8(c) hereof.
6. Indemnification
And Contribution.
(a) The
Company agrees to indemnify and hold harmless each Holder of Transfer Restricted
Securities (including each Initial Purchaser in its capacity as such), its
directors, officers, and employees, Affiliates and agents and each Person,
if
any, who controls any such Holder within the meaning of the Securities Act
or
the Exchange Act (each, an “Indemnified
Holder”),
against any loss, claim, damage, liability or expense, joint or several, or
any
action in respect thereof (including, but not limited to, any loss, claim,
damage, liability or action relating to resales of the Transfer Restricted
Securities), to which such Indemnified Holder may become subject, insofar as
any
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
(A)
the Shelf Registration Statement at the time that it becomes or is declared
effective or in any amendment thereof, in any Prospectus, or in any amendment
or
supplement thereto or any issuer free writing prospectus in respect thereof,
or
(B) any Blue Sky application or other document or any amendment or supplement
thereto prepared or executed by the Company (or based upon written information
furnished by or on behalf of the Company expressly for use in such Blue Sky
application or other document or amendment or supplement) filed in any
jurisdiction specifically for the purpose of qualifying any or all of the
Transfer Restricted Securities under the securities law of any state or other
jurisdiction (such application or document being hereinafter called a
“Blue
Sky Application”);
or
(ii) 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,
and
agrees to reimburse each Indemnified Holder promptly upon demand for any legal
or other expenses reasonably incurred by such Indemnified Holder in connection
with investigating, defending, settling, compromising or paying any such loss,
claim, damage, liability, expense or action; provided,
however,
that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage, liability or expense arises out of, or is based upon, any untrue
statement or alleged untrue statement or omission or alleged omission made
in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of such Holder (or its related Indemnified Holder)
specifically for use therein. The foregoing indemnity agreement is in addition
to any liability which the Company may otherwise have.
The
Company also agrees to indemnify as provided in this Section 6(a) or contribute
as provided in Section 6(e) hereof to Losses (as defined below) of each
underwriter, if any, of Notes registered under a Shelf Registration Statement,
their directors, officers, employees, Affiliates or agents and each Person
who
controls such underwriter on substantially the same basis as that of the
indemnification of the Initial Purchasers and the selling Holders provided
in
this Section 6(a) and shall, if requested by any Holder, enter into an
underwriting agreement reflecting such agreement, as provided in Section
4(b)(xxvi) hereof.
(b) Each
Holder, severally and not jointly, agrees to indemnify and hold harmless the
Company, its directors, officers, employees and agents and each Person, if
any,
who controls the Company within the meaning of the Securities Act or the
Exchange Act to the same extent as the foregoing indemnity from the Company
to
each such Holder, but only with reference to written information relating to
such Holder furnished to the Company by or on behalf of such Holder specifically
for inclusion in the documents referred to in the foregoing indemnity;
provided,
however,
that no
such Holder shall be liable for any indemnity claims hereunder in excess of
the
amount of net proceeds received by such Holder from the sale of Transfer
Restricted Securities pursuant to such document(s). This indemnity agreement
set
forth in this Section shall be in addition to any liabilities which any such
Holder may otherwise have.
(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 under this
Section 6, 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 (i) shall not relieve it from any
liability which it may have under paragraphs (a) or (b) of this Section unless
and to the extent it did not otherwise learn of such action and has been
materially prejudiced (through the forfeiture of substantive rights and
defenses) by such failure and (ii) shall not, in any event, relieve it from
any
liability which it may have to an indemnified party otherwise than under
paragraphs (a) or (b) of 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
reasonable costs of investigation; provided,
however,
that the
Holders shall have the right to employ a single counsel to represent jointly
the
Holders and their officers, employees and controlling Persons who may be subject
to liability arising out of any claim in respect of which indemnity may be
sought by the Holders against the Company under this Section 6 if the Holders
seeking indemnification shall have been advised by legal counsel that there
may
be one or more legal defenses available to such Holders and their respective
officers, employees and controlling Persons that are different from or
additional to those available to the Company, and in that event, the reasonable
fees and expenses of such separate counsel shall be paid by the Company.
(d) The
indemnifying party under this Section shall not be liable for any settlement
of
any proceeding effected without its written consent, which shall not be withheld
unreasonably, but if settled with such consent or if there is a final judgment
for the plaintiff, the indemnifying party agrees to indemnify the indemnified
party against any loss, claim, damage, liability or expense 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 of counsel as contemplated by Section
6(c) hereof, 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 30 days after receipt by such indemnifying
party of the aforesaid request, (ii) such indemnifying party shall have received
notice of the terms of such settlement at least 30 days prior to such settlement
being entered into, and (iii) such indemnifying party shall not have reimbursed
the indemnified party in accordance with such request prior to the date of
such
settlement. Notwithstanding the immediately preceding sentence, if
at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel,
an
indemnifying party shall not be liable for any settlement effected without
its
consent if such indemnifying party (i) reimburses such indemnified party in
accordance with such request to the extent it considers such request to be
reasonable and (ii) provides written notice to the indemnified party
substantiating the unpaid balance as unreasonable, in each case prior to the
date of such settlement. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement, compromise or consent
to the entry of judgment in any pending or threatened action, suit or proceeding
in respect of which any indemnified party is or could have been a party and
indemnity was or could have been sought hereunder by such indemnified party,
unless such settlement, compromise or consent (x) includes an unconditional
release of such indemnified party from all liability on claims that are the
subject matter of such action, suit or proceeding and (y) does not include
a
statement as to or an admission of fault, culpability or a failure to act by
or
on behalf of any indemnified party.
(e) If
the
indemnification provided for in this Section 6 shall for any reason be
unavailable or insufficient to hold harmless an indemnified party under Section
6(a) or 6(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 aggregate amount paid
or
payable by such indemnified party as a result of such loss, claim, damage or
liability (including legal or other expenses reasonably incurred in connection
with investigating or defending any loss, claim, liability, damage or action)
(collectively “Losses”)
(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 Transfer Restricted Securities on
the
one hand and a Holder with respect to the sale by such Holder of the Transfer
Restricted Securities on the other, or
(ii) if
the
allocation provided by Section (6)(e)(i) is not permitted by applicable law,
in
such proportion as is appropriate to reflect not only the relative benefits
referred to in Section 6(e)(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 (before deducting expenses) received
by
the Company, on the one hand, bear to the total proceeds received by such Holder
with respect to its sale of Transfer 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
6(e) 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 paragraph
(e).
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 6 shall be deemed to include, for purposes of this Section 6, 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.
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 6(e) are several and not
joint.
(f) The
provisions of this Section 6 shall remain in full force and effect, regardless
of any investigation made by or on behalf of any Holder or the Company or any
of
the officers, directors or controlling Persons referred to in Section 6 hereof,
and will survive the sale by a Holder of Transfer Restricted
Securities.
7. Rule
144A and Rule 144. The
Company agrees with each Holder, for so long as any Transfer Restricted
Securities remain outstanding and during any period in which the Company (i)
is
not subject to Section 13 or 15(d) of the Exchange Act, to make available,
upon
request of any Holder, to such Holder or beneficial owner of Transfer Restricted
Securities in connection with any sale thereof and any prospective purchaser
of
such Transfer Restricted Securities designated by such Holder or beneficial
owner, the information required by Rule 144A(d)(4) under the Securities Act
in
order to permit resales of such Transfer Restricted Securities pursuant to
Rule
144A, and (ii) is subject to Section 13 or 15 (d) of the Exchange Act, to make
all filings required thereby in a timely manner in order to permit resales
of
such Transfer Restricted Securities pursuant to Rule 144.
8. Underwritten
Registrations.
(a) Any
Holder of Transfer Restricted Securities who desires to do so may sell Transfer
Restricted Securities (in whole or in part) in an underwritten offering;
provided
that (i)
the Electing Holders of at least 33-1/3% in aggregate principal amount of the
Transfer Restricted Securities then covered by the Shelf Registration Statement
shall request such an offering and (ii) at least such aggregate principal amount
of such Transfer Restricted Securities shall be included in such offering;
and
provided,
further,
that
the Company shall not be obligated to participate in more than one underwritten
offering during the Effectiveness Period. Upon receipt of such a request, the
Company shall provide all Holders of Transfer Restricted Securities written
notice of the request, which notice shall inform such Holders that they have
the
opportunity to participate in the offering. If any of the Transfer Restricted
Securities covered by the Shelf Registration Statement are to be sold in an
underwritten offering, the Managing Underwriters shall be selected by the
Majority Holders.
(b) No
Person
may participate in any underwritten offering pursuant to the Shelf Registration
Statement unless such Person (i) agrees to sell such Person’s Notes on the basis
reasonably provided in any underwriting arrangements approved by the Persons
entitled hereunder to approve such arrangements; (ii) completes and executes
all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements; and (iii) if such Holder is not then a Notice Holder, such ▇▇▇▇▇▇
returns a completed and signed Notice and Questionnaire to the Company in
accordance with Section 2(f) hereof within a reasonable amount of time before
such underwritten offering.
(c) The
Holders participating in any underwritten offering shall be responsible for
any
underwriting discounts and commissions and fees and, subject to Section 5
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 disburse-ments 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 4(b)(xxiv) hereof, upon receipt of a request from the Managing
Underwriter or a representative of holders of a majority of the Transfer
Restricted Securities to be included in an underwritten offering to prepare
and
file an amendment or supplement to the Shelf Registration Statement and
Prospectus in connec-tion with an underwritten offering, the Company may delay
the filing of any such amend-ment 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.
9. Miscellaneous.
(a) Remedies.
The
Company acknowledges and agrees that any failure by the Company to comply with
its obligations under Section 2 hereof may result in material irreparable injury
to the Initial Purchasers or the Holders for which there is no adequate remedy
at law, that it will not be possible to measure damages for such injuries
precisely, and that, in the event of any such failure, in addition to being
entitled to exercise all rights provided to it herein, in the Indenture or
in
the Purchase Agreement or granted by law, including recovery of liquidated
or
other damages, the Initial Purchasers or any Holder may obtain such relief
as
may be required to specifically enforce the Company’s obligations under Section
2 hereof. The Company further agrees to waive the defense in any action for
specific performance that a remedy at law would be adequate.
(b) Actions
Affecting Transfer Restricted Securities.
The
Company shall not, directly or indirectly, take any action with respect to
the
Transfer Restricted Securities as a class that would adversely affect the
ability of the Holders of Transfer Restricted Securities to include such
Transfer Restricted Securities in a registration undertaken pursuant to this
Agreement.
(c) 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. In addition, the Company shall
not grant to any of its securityholders (other than the Holders of Transfer
Restricted Securities in such capacity) the right to include any of its
securities in the Shelf Registration Statement provided for in this Agreement
other than the Transfer Restricted Securities.
(d) Amendments
and Waivers.
This
Agreement may not be amended, modified or supplemented, and waivers or consents
to or departures from the provisions hereof may not be given, unless the Company
has obtained the written consent of a Majority of Holders; provided,
however,
that
with respect to any matter that directly or indirectly adversely affects the
rights of any Initial Purchaser hereunder, the Company shall obtain the written
consent of each such Initial Purchaser against which such amendment,
qualification, supplement, waiver or consent is to be effective. Notwithstanding
the foregoing (except the foregoing proviso), a waiver or consent to depart
from
the provisions hereof with respect to a matter that relates exclusively to
the
rights of Holders whose securities are being sold pursuant to a Shelf
Registration Statement and does not directly or indirectly adversely affect
the
rights of other Holders, may be given by the Majority of Holders, determined
on
the basis of Notes being sold rather than registered under such Shelf
Registration Statement.
(e) Notices.
All
notices and other communications provided for or permitted hereunder shall
be
made in writing by hand delivery, first class mail (registered or certified,
return receipt requested), facsimile transmission, or air courier guaranteeing
overnight delivery:
(i) if
to a
Holder, at the address set forth on the records of the Registrar (as defined
in
the Indenture) or the transfer agent of the Common Stock, as the case may be;
and
(ii) if
to the
Company, initially at its address set forth in the Purchase
Agreement,
With
a
copy to (which shall not constitute notice):
Drinker
▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇
▇▇▇▇▇
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18th
and
Cherry Streets
Philadelphia,
PA 19103-6996
Facsimile:
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Attention:
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(iii) If
to the
Initial Purchasers at their addresses set forth in the Purchase Agreement,
with
a copy to (which shall not constitute notice):
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▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
New
York,
NY 10017
Facsimile:
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Attention:
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All
such
notices and communications shall be deemed to have been duly given: at the
time
delivered by hand, if personally delivered; five Business Days after being
deposited in the mail, postage prepaid, if mailed; when receipt acknowledged,
if
transmitted by facsimile; and on the next Business Day, if timely delivered
to
an air courier guaranteeing overnight delivery.
Any
party
hereto may change the address for receipt of communications by giving written
notice to the others.
(f) Successors
and Assigns.
This
Agreement shall inure to the benefit of and be binding upon the successors
and
assigns of each of the parties, including without limitation and without the
need for an express assignment, subsequent Holders of Transfer Restricted
Securities. The Company hereby agrees to extend the benefit of this Agreement
to
any Holder and any such Holder may specifically enforce the provisions of this
Agreement as if an original party hereto.
(g) Counterparts.
This
Agreement may be executed in any number of counterparts and by the parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which taken together shall constitute one and
the
same agreement.
(h) Jurisdiction.
The
Company agrees that any suit, action or proceeding against the Company brought
by any Holder or Initial Purchaser, the directors, officers, employees,
Affiliates and agents of any Holder or Initial Purchaser, or by any Person
who
controls any Holder or Initial Purchaser, arising out of or based upon this
Agreement or the transactions contemplated hereby may be instituted in any
State
or U.S. federal court in The City of New York and County of New York, and waives
any objection which it may now or hereafter have to the laying of venue of
any
such proceeding, and irrevocably submits to the non-exclusive jurisdiction
of
such courts in any suit, action or proceeding. The Company hereby appoints
Corporation Service Company as its authorized agent (the “Authorized
Agent”)
upon
whom process may be served in any suit, action or proceeding arising out of
or
based upon this Agreement or the transactions contemplated herein which may
be
instituted in any State or U.S. federal court in The City of New York and County
of New York, by any Holder or Initial Purchaser, the directors, officers,
employees, Affiliates and agents of any Holder or Initial Purchaser, or by
any
person who controls any Holder or Initial Purchaser, and expressly accepts
the
non-exclusive jurisdiction of any such court in respect of any such suit, action
or proceeding. The Company hereby represents and warrants that the Authorized
Agent has accepted such appointment and has agreed to act as said agent for
service of process, and the Company agrees to take any and all action, including
the filing of any and all documents that may be necessary to continue such
appointment in full force and effect as aforesaid. Service of process upon
the
Authorized Agent shall be deemed, in every respect, effective service of process
upon the Company. The Company further agrees to take any and all action,
including the execution and filing of any and all such documents and
instruments, as may be necessary to continue such designation and appointment
in
full force and effect so long as any of the Securities shall be outstanding.
To
the extent that the Company may acquire any immunity from jurisdiction of any
court or from any legal process (whether through service of notice, attachment
prior to judgment, attachment in aid of execution, execution or otherwise)
with
respect to itself or its property, it hereby irrevocably waives such immunity
in
respect of this Agreement, to the fullest extent permitted by law.
Notwithstanding the foregoing, any action arising out of or based upon this
Agreement may be instituted by any Holder or Initial Purchaser, the directors,
officers, employees, Affiliates and agents of any Holder or Initial Purchaser,
or by any Person who controls any Holder or Initial Purchaser, in any court
of
competent jurisdiction.
(i) Notes
Held by the Company or Their Affiliates.
Whenever
the consent or approval of Holders of a specified percentage of Transfer
Restricted Securities is required hereunder, Transfer Restricted 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 Transfer Restricted Securities) shall not be counted in determining
whether such consent or approval was given by the Holders of such required
percentage.
(j) Headings.
The
headings in this Agreement are for convenience of reference only and shall
not
limit or otherwise affect the meaning hereof.
(k) Governing
Law.
This
Agreement shall be governed by and construed in accordance with the law of
the
State of New York.
(l) Severability.
If any
one or more of the provisions contained herein, or the application thereof
in
any circumstance, is held invalid, illegal or unenforceable, the validity,
legality and enforceability of any such provision in every other respect and
of
the remaining provisions contained herein shall not be affected or impaired
thereby, it being intended that all of the rights and privileges of the parties
shall be enforceable to the fullest extent permitted by law.
(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 Transfer Restricted
Securities. This Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter.
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
written above.
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CHARMING
SHOPPES, INC.
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By________________________
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Name:
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Title
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▇.▇.
▇▇▇▇▇▇ SECURITIES INC.
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BANC
OF AMERICA SECURITIES LLC
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Acting
severally on behalf of themselves and the several Initial
Purchasers
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BANC
OF AMERICA SECURITIES LLC
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By________________________________
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Name:
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Title:
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▇.▇.
▇▇▇▇▇▇ SECURITIES INC.
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By________________________________
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Name:
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Title:
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