Registration Rights Agreement Dated as of July 25, 2006 between New River Pharmaceuticals Inc. and Merrill Lynch, Pierce, Fenner & Smith Incorporated
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Dated
as of July 25, 2006
between
and
▇▇▇▇▇▇▇
Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
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This
Registration Rights Agreement (the “Agreement”) is made and entered into this
25th day of July, 2006, between New River Pharmaceuticals Inc., a Virginia
corporation (the “Company”), and ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated (“▇▇▇▇▇▇▇ ▇▇▇▇▇”).
This
Agreement is made pursuant to the Purchase Agreement (the “Purchase Agreement”),
dated July 19, 2006, between the Company and the Initial Purchasers named
therein (the “Initial Purchasers”), for whom ▇▇▇▇▇▇▇ ▇▇▇▇▇ acts as
representative, which provides for the sale by the Company to the Initial
Purchasers of $125,000,000 aggregate principal amount ($143,750,000 aggregate
principal amount if the Initial Purchasers exercise their over-allotment option
in full) of the Company’s 3.50% Convertible Subordinated Notes due 2013 (the
“Notes” and together with the shares of Common Stock of the Company into which
the Notes are convertible, the “Securities”). In order to induce the Initial
Purchasers to enter into the Purchase Agreement, the Company has agreed to
provide to the Initial Purchasers and their direct and indirect transferees
the
registration rights set forth in this Agreement. The execution of this Agreement
is a condition to the closing under the Purchase Agreement.
In
consideration of the foregoing, the parties hereto agree as
follows:
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1.
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Definitions.
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As
used
in this Agreement, the following capitalized defined terms shall have the
following meanings:
“1933
Act”
shall
mean the Securities Act of 1933, as amended from time to time.
“1934
Act”
shall
mean the Securities Exchange Act of l934, as amended from time to
time.
“1939
Act”
shall
mean the Trust Indenture Act of 1939, as amended from time to time.
“Additional
Interest”
shall
have the meaning set forth in Section 2.4 herein.
“Closing
Date”
shall
mean the Initial Closing Time as defined in the Purchase Agreement.
“Common
Stock”
shall
mean any shares of common stock, par value $0.001 per share, of the Company
and
any other shares of common stock as may constitute “Common Stock” for purposes
of the Indenture.
“Company”
shall
have the meaning set forth in the preamble and shall also include the Company’s
successors.
“Depositary”
shall
mean The Depository Trust Company, or any other depositary appointed by the
Company, provided,
however,
that
such depositary must have an address in the Borough of Manhattan, in the City
of
New York.
“Effectiveness
Period”
shall
have the meaning set forth in Section 2.1(b) herein.
“Holder”
shall
mean the Initial Purchasers, for so long as they own any Registrable Securities,
and their successors, assigns and direct and indirect transferees who become
owners, beneficial or otherwise, of Registrable Securities under the
Indenture.
“Indenture”
shall
mean the Indenture relating to the Securities, dated as of the date hereof,
between the Company and The Wilmington Trust Company, as Trustee, as the same
may be amended, supplemented, waived or otherwise modified from time to time
in
accordance with the terms thereof.
“Initial
Purchasers”
shall
have the meaning set forth in the preamble.
“Issuer
Free Writing Prospectus”
shall
have the meaning set forth in Section 2.1(f) herein.
“Majority
Holders”
shall
mean the Holders of a majority of the aggregate principal amount of outstanding
Registrable Securities; provided
that,
for
purposes of this definition, (1) a Holder of shares of Common Stock that
constitutes Registrable Securities which were issued upon conversion of the
Notes shall be deemed to hold an aggregate principal amount at maturity of
Registrable Securities (in addition to the principal amount at maturity of
any
Registrable Securities held by such Holder) equal to the principal amount at
maturity of Registrable Securities which were converted into such shares of
Common Stock and (2) such Registrable Securities which were converted into
such
shares of Common Stock shall be deemed to be outstanding; provided
further,
that
whenever the consent or approval of Holders of a specified percentage of
Registrable Securities is required hereunder, Registrable Securities held by
the
Company or any Affiliate (as defined in the Indenture) of the Company shall
be
disregarded in determining whether such consent or approval was given by the
Holders of such required percentage amount.
“▇▇▇▇▇▇▇
▇▇▇▇▇”
shall
have the meaning set forth in the preamble.
“Offering
Memorandum”
shall
mean the offering memorandum of the Company, dated July 19, 2006, related to
the
Securities.
“Person”
shall
mean an individual, partnership (general or limited), corporation, limited
liability company, trust or unincorporated organization, or a government or
agency or political subdivision thereof.
“Prospectus”
shall
mean the prospectus included in a Shelf Registration Statement, including any
preliminary prospectus, and any such prospectus as amended or supplemented
by
any prospectus supplement, including any such prospectus supplement with respect
to the terms of the offering of any portion of the Registrable Securities
covered by a Shelf Registration Statement, and by all other amendments and
supplements to a prospectus, including post-effective amendments, and in each
case including all materials incorporated by reference therein.
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“Purchase
Agreement”
shall
have the meaning set forth in the preamble.
“Questionnaire”
shall
have the meaning set forth in Section 2.1(d) herein.
“Registrable
Securities”
shall
mean all or any of the Securities; provided,
however,
that
any such Securities shall cease to be Registrable Securities when (i) a Shelf
Registration Statement with respect to such Securities shall have been declared
effective under the 1933 Act and such Securities shall have been disposed of
pursuant to such Shelf Registration Statement, (ii) such Securities have been
sold to the public pursuant to Rule 144 or may be sold or transferred pursuant
to Rule l44(k) (or any similar provision then in force, but not Rule 144A)
under
the 1933 Act, or (iii) such Securities shall have ceased to be
outstanding.
“Registration
Default”
shall
have the meaning set forth in Section 2.4 herein.
“Registration
Expenses”
shall
mean any and all expenses incident to performance of or compliance by the
Company with this Agreement, whether or not a Shelf Registration Statement
becomes effective, including without limitation: (i) all SEC, stock exchange
or
National Association of Securities Dealers, Inc. (the “NASD”)
registration and filing fees, including, if applicable, the reasonable and
documented fees and expenses of any “qualified independent underwriter” (and its
counsel) that is required to be retained by any holder of Registrable Securities
in accordance with the rules and regulations of the NASD, (ii) all fees and
expenses incurred by the Company in connection with compliance with state
securities or blue sky laws and compliance with the rules of the NASD (including
reasonable and documented fees and disbursements of counsel for any underwriters
or Holders in connection with blue sky qualification of any of the Registrable
Securities and any filings with the NASD), (iii) all expenses of the Company
in
preparing or assisting in preparing, word processing, printing and distributing
any Shelf Registration Statement, any Prospectus, any amendments or supplements
thereto, any securities sales agreements and other documents relating to the
performance of and compliance with this Agreement, (iv) all fees and expenses
incurred by the Company in connection with the listing, if any, of any of the
Registrable Securities on any securities exchange or exchanges, (v) all rating
agency fees incurred by the Company, if any, (vi) the fees and disbursements
of
counsel for the Company and of the independent public accountants of the
Company, including the expenses of any special audits or “comfort” letters
required by or incident to such performance and compliance, (vii) the reasonable
and documented fees and expenses of the Trustee, and any escrow agent or
custodian, (viii) the reasonable and documented fees and expenses of a single
counsel to the Holders in connection with the Shelf Registration Statement,
which counsel shall be selected by the Majority Holders or ▇▇▇▇▇▇▇ ▇▇▇▇▇ on
their behalf, and (ix) any fees and expenses of any special experts retained
by
the Company in connection with any Shelf Registration Statement, but excluding
any underwriting discounts and commissions and transfer taxes, if any, relating
to the sale or disposition of Registrable Securities by a Holder and the fees
and expenses of any counsel to the Holders, except as provided for in clause
(viii) above.
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“SEC”
shall
mean the Securities and Exchange Commission or any successor agency or
government body performing the functions currently performed by the United
States Securities and Exchange Commission.
“Shelf
Registration”
shall
mean a registration effected pursuant to Section 2.1 hereof.
“Shelf
Registration Statement”
shall
mean a “shelf” registration statement of the Company pursuant to the provisions
of Section 2.1 of this Agreement which covers all of the Registrable Securities
on an appropriate form under Rule 415 under the 1933 Act, or any similar rule
that may be adopted by the SEC, and all amendments and supplements to such
registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
materials incorporated by reference therein.
“Suspension
Period”
shall
have the meaning set forth in Section 2.5 herein.
“Trustee”
shall
mean the trustee with respect to the Securities under the
Indenture.
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2.
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Registration
Under the ▇▇▇▇ ▇▇▇.
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2.1 Shelf
Registration.
(a) The
Company shall, at its cost, no later than 120 days after the Closing Date,
file
with the SEC, and thereafter shall use its commercially reasonable efforts
to
cause to be declared effective as promptly as practicable but no later than
210
days after the Closing Date, a Shelf Registration Statement relating to the
offer and sale of the Registrable Securities by the Holders that have provided
the information pursuant to Section 2.1(d).
(b) The
Company shall, at its cost, use its commercially reasonable efforts, subject
to
Section 2.5, to keep the Shelf Registration Statement continuously effective
in
order to permit the Prospectus forming part thereof to be usable by Holders
(i) for a period of two years from the date the Shelf Registration
Statement is declared effective by the SEC, or (ii) for such shorter period
that will terminate (A) when all Registrable Securities covered by the
Shelf Registration Statement have been sold pursuant to the Shelf Registration
Statement, (B) when the Holders, other than “affiliates” (as defined in
Rule 144 under the ▇▇▇▇ ▇▇▇) of the Company, are able to sell or transfer to
the
public all Registrable Securities immediately without restriction pursuant
to
Rule 144 (or any similar provision then in force, including Rule 144(k) but
not
Rule 144A) under the 1933 Act or (C) when all Registrable Securities cease
to be outstanding or otherwise cease to be Registrable Securities (the
“Effectiveness
Period”).
(c) Notwithstanding
any other provisions hereof, the Company shall use its commercially reasonable
efforts to provide that (i) any Shelf Registration Statement and any amendment
thereto and any Prospectus forming part thereof and any supplement thereto
complies in all material respects with the 1933 Act and the rules and
regulations thereunder, (ii) any Shelf Registration Statement and any amendment
thereto does not, when it becomes effective, contain an untrue statement of
a
material fact or omit to state a material fact required to be stated therein
or
necessary to make the statements therein not misleading and (iii) any Prospectus
forming part of any Shelf Registration Statement, and any supplement to such
Prospectus (as amended or supplemented from time to time), does not include
an
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in light of the circumstances under
which they were made, not misleading.
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(d) Notwithstanding
any other provision hereof, no Holder of Registrable Securities may include
any
of its Registrable Securities in the Shelf Registration Statement pursuant
to
this Agreement unless the Holder furnishes to the Company a fully completed
notice and questionnaire in the form attached as Annex A to the Offering
Memorandum (the “Questionnaire”)
and
such other information in writing as the Company may reasonably request in
writing for use in connection with the Shelf Registration Statement or
Prospectus included therein and in any application to be filed with or under
state securities laws. At least 30 days prior to the filing of the Shelf
Registration Statement, the Company will provide notice to the Holders of its
intention to file the Shelf Registration Statement. In order to be named as
a
selling securityholder in the Prospectus at the time of effectiveness of the
Shelf Registration Statement, each Holder must, before the filing of the Shelf
Registration Statement and no later than the 20th day after being notified
of
the Company’s intention to file, furnish the completed Questionnaire and such
other information that the Company may reasonably request in writing, if any,
to
the Company in writing and the Company shall include the information from the
completed Questionnaire and such other information, if any, in the Shelf
Registration Statement and the Prospectus in a manner so that upon effectiveness
of the Shelf Registration Statement the Holder will be permitted to deliver
the
Prospectus to purchasers of the Holder’s Registrable Securities. From and after
the date that the Shelf Registration Statement is first declared effective
by
the SEC, upon receipt of a completed Questionnaire and such other information
that the Company may reasonably request in writing, if any, the Company will
use
its commercially reasonable efforts to file within 20 business days any
amendments or supplements to the Shelf Registration Statement necessary for
such
Holder to be named as a selling securityholder in the Prospectus contained
therein to permit such Holder to deliver the Prospectus to purchasers of the
Holder’s Securities (subject to the Company’s right to suspend the Shelf
Registration Statement as described in Section 2.5 below); provided,
however,
that
the Company shall not be required to file more than one such amendment to the
Shelf Registration Statement in any calendar quarter for all such Holders.
Holders that do not deliver a completed written Questionnaire and such other
information, as provided for in this Section 2.1(d), will not be named as
selling securityholders in the Prospectus. Each Holder named as a selling
securityholder in the Prospectus agrees to promptly furnish to the Company
all
information required to be disclosed in order to make information previously
furnished to the Company by the Holder not materially misleading and any other
information regarding such Holder and the distribution of such Holder’s
Registrable Securities as the Company may from time to time reasonably request
in writing.
(e) Each
Holder agrees not to sell any Registrable Securities pursuant to the Shelf
Registration Statement without delivering, or causing to be delivered, a
Prospectus to the purchaser thereof and, following termination of the
Effectiveness Period, to notify the Company, within ten days of a written
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 such Holder’s Registrable Securities have been so sold;
provided that the Company shall use reasonable efforts to confirm that all
of
such Holder’s Registrable Securities have been so sold prior to making such
assumption.
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(f) The
Company represents and agrees that, unless it obtains the prior consent of
a
majority of the Registrable Securities that are registered under the Shelf
Registration Statement at such time or the approval of the counsel for the
Holders of such Registrable Securities or the consent of the managing
underwriter in connection with any underwritten offering of Registrable
Securities, and each Holder represents and agrees that, unless it obtains the
prior consent of the Company and any such underwriter, it will not make any
offer relating to the Securities that would constitute an “issuer free writing
prospectus,” as defined in Rule 433 under the 1933 Act (an “Issuer
Free Writing Prospectus”),
or
that would otherwise constitute a “free writing prospectus,” as defined in Rule
405 under the 1933 Act, required to be filed with the SEC. The Company
represents that any Issuer Free Writing Prospectus will not include any
information that conflicts with the information contained in the Shelf
Registration Statement or Prospectus and that any Issuer Free Writing
Prospectus, when taken together with the information in the Shelf Registration
Statement and the Prospectus, will not include any untrue statement of a
material fact or omit to state any material fact necessary in order to make
the
statements therein, in light of the circumstances under which they were made,
not misleading.
The
Company will not permit any securities other than Registrable Securities to
be
included in the Shelf Registration Statement. The Company agrees to supplement
or amend the Shelf Registration Statement if required by the rules, regulations
or instructions applicable to the registration form used by the Company if
required by the 1933 Act, or to the extent the Company does not reasonably
object, as reasonably requested in writing by the Initial Purchasers with
respect to information relating to the Initial Purchasers or by the Trustee
on
behalf of the Holders with respect to information relating to the Holders,
and
to furnish to the Holders of Registrable Securities that are covered under
such
Shelf Registration Statement copies of any such supplement or amendment promptly
after its being used or filed with the SEC in such amounts as they may
reasonably request.
2.2 Expenses.
The
Company shall pay all Registration Expenses in connection with the registration
pursuant to Section 2.1. Each Holder shall pay all underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or disposition
of
such Holder’s Registrable Securities pursuant to the Shelf Registration
Statement.
2.3 Effectiveness.
(a) The
Company will be deemed not to have used its reasonable best efforts to cause
the
Shelf Registration Statement to become, or to remain, effective during the
requisite period (subject to Section 2.5) if the Company voluntarily takes
any
action that would, or omits to take any action which omission would, result
in
any such Shelf Registration Statement not being declared effective or in the
Holders of Registrable Securities covered thereby not being able to offer and
sell such Registrable Securities during that period as and to the extent
contemplated hereby, unless such action is required by applicable law.
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(b) A
Shelf
Registration Statement pursuant to Section 2.1 hereof will not be deemed to
have
become effective unless it has been declared effective by the SEC or have become
automatically effective under the 1933 Act; provided,
however,
that
if, after it has been declared effective, the offering of Registrable Securities
pursuant to a Shelf Registration Statement is interfered with by any stop order,
injunction or other order or requirement of the SEC or any other governmental
agency or court, such Shelf Registration Statement will be deemed not to have
become effective during the period of such interference, until the offering
of
Registrable Securities pursuant to such Shelf Registration Statement may legally
resume.
2.4 Interest.
In the
event that (a) a Shelf Registration Statement is not filed with the SEC on
or
before the 120th
calendar
day following the Closing Date, (b) a Shelf Registration Statement is not
declared effective on or prior to the 210th
calendar
day following the Closing Date, (c) after effectiveness, subject to Section
2.5,
the Shelf Registration Statement ceases to be effective or fails to be usable
by
the Holders without being succeeded within seven business days by a
post-effective amendment or a report filed with the SEC pursuant to the 1934
Act
that cures the failure to be effective or usable, or (d) the Prospectus is
unusable by the Holders for any reason, and the number of days for which the
Shelf Registration Statement shall not be usable exceeds the Suspension Period
(as defined in Section 2.5 hereof) (each such event being a “Registration
Default”),
additional interest (“Additional
Interest”)
will
accrue at a rate per annum of one-quarter of one percent (0.25%) of the
principal amount of the Securities for the first 90-day period from the day
following the Registration Default, and thereafter at a rate per annum of
one-half of one percent (0.50%) of the principal amount of the Securities;
provided
that in
no event shall Additional Interest accrue at a rate per annum exceeding one
half
of one percent (0.50%) of the issue price of the Securities; provided
further
that no
Additional Interest shall accrue after the second anniversary of the Closing
Date. Upon the cure of all Registration Defaults then continuing, the accrual
of
Additional Interest will automatically cease and the interest rate borne by
the
Securities will revert to the original interest rate at such time. Additional
Interest shall be computed based on the actual number of days elapsed in each
90-day period in which the Shelf Registration Statement or the Prospectus is
not
effective or is unusable. Holders who have converted Securities into Common
Stock will not be entitled to receive any Additional Interest with respect
to
such Common Stock or the issue price of the Securities converted.
The
Company shall notify the Trustee within five business days after each and every
date on which an event occurs in respect of which Additional Interest is
required to be paid. Additional Interest shall be paid by depositing with the
Trustee, in trust, for the benefit of the Holders of Registrable Securities,
on
or before the applicable semiannual interest payment date, in immediately
available funds in sums sufficient to pay the Additional Interest then due.
The
Additional Interest due shall be payable in arrears on each interest payment
date to the record Holder of Registrable Securities entitled to receive the
interest payment to be paid on such date as set forth in the Indenture. Each
obligation to pay Additional Interest shall be deemed to accrue from and
including the day following the Registration Default to but excluding the day
on
which the Registration Default is cured.
A
Registration Default under clause (a) above shall be cured on the date that
the
Registration Statement is filed with the SEC. A Registration Default under
clause (b) above shall be cured on the date that the Shelf Registration
Statement is declared effective by the SEC or deemed to become automatically
effective under the 1933 Act. A Registration Default under clauses (c) or (d)
above shall be cured on the date an amended Shelf Registration Statement is
declared effective by the SEC or deemed to become automatically effective under
the 1933 Act, or the Company otherwise declares the Shelf Registration Statement
and the Prospectus useable, as applicable. The Company will have no liabilities
for monetary damages other than the Additional Interest with respect to any
Registration Default.
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2.5 Suspension.
Notwithstanding any other provision hereof, the Company may suspend the use
of
any Prospectus, without incurring or accruing any obligation to pay Additional
Interest pursuant to Section 2.4 hereof or being deemed in violation of any
other provision hereof, for a period not to exceed 45 calendar days in any
three-month period, or an aggregate of 120 calendar days in any twelve-month
period, (each, a “Suspension
Period”)
if the
Board of Directors of the Company shall have determined in good faith that
because of valid business reasons (not including avoidance of the Company’s
obligations hereunder), including without limitation proposed or pending
corporate developments and similar events or because of filings with the SEC,
it
is in the best interests of the Company to suspend such use, and prior to
suspending such use the Company provides the Holders with written notice of
such
suspension, which notice need not specify the nature of the event giving rise
to
such suspension. Each Holder shall keep confidential any communications received
by it from the Company regarding the suspension of the use of the Prospectus,
except as required by applicable law.
3. Registration
Procedures.
In
connection with the obligations of the Company with respect to the Shelf
Registration, the Company shall, subject to the rights of the Company to invoke
and maintain a Suspension Period in accordance with Section 2.5 without being
in
violation of any of the provisions hereunder:
(a) prepare
and file with the SEC a Shelf Registration Statement, within the relevant time
period specified in Section 2, on the appropriate form under the 1933 Act,
which
form (i) shall be selected by the Company, (ii) shall be available for the
sale
of the Registrable Securities by the selling Holders thereof, (iii) shall comply
as to form in all material respects with the requirements of the applicable
form
and include or incorporate by reference all financial statements required by
the
SEC to be filed therewith or incorporated by reference therein, and (iv) shall
comply in all respects with the applicable requirements of Regulation S-T under
the 1933 Act, if any, and use commercially reasonable efforts to cause such
Shelf Registration Statement to become effective and remain effective in
accordance with Section 2 hereof;
(b) prepare
and file with the SEC such amendments and post-effective amendments to the
Shelf
Registration Statement as may be necessary under applicable law to keep the
Shelf Registration Statement effective for the Effectiveness Period, subject
to
Section 2.5; and cause each Prospectus to be supplemented by any required
prospectus supplement, and as so supplemented to be filed pursuant to Rule
424
(or any similar provision then in force) under the 1933 Act and comply during
the Effectiveness Period with the provisions of the 1933 Act, the 1934 Act
and
the rules and regulations thereunder required to enable the disposition of
all
Registrable Securities covered by the Shelf Registration Statement in accordance
with the intended method or methods of distribution by the selling Holders
thereof;
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(c) (i) notify
each Holder of Registrable Securities of the filing of a Shelf Registration
Statement with respect to the Registrable Securities; (ii) furnish to each
Holder of Registrable Securities that has provided the information required
by
Section 2.1(d) and to each underwriter of an underwritten offering of
Registrable Securities, if any, without charge, electronic copies of each
Prospectus, including each preliminary Prospectus, and any amendment or
supplement thereto and such other documents as such Holder or underwriter may
reasonably request, including financial statements and schedules and, if the
Holder so requests, all exhibits in order to facilitate the unrestricted sale
or
other disposition of the Registrable Securities; and (iii) subject to Section
2.5 hereof and to any notice by the Company in accordance with Section 3(e)
hereof of the existence of any fact of the kind described in Sections 3(e)(ii),
(iii), (iv), (v) and (vi) hereof, hereby consent to the use of the Prospectus
or
any amendment or supplement thereto by each of the selling Holders of
Registrable Securities that has provided the information required by Section
2.1(d) in connection with the offering and sale of the Registrable
Securities;
(d) use
commercially reasonable efforts to register or qualify the Registrable
Securities under all applicable state securities or “blue sky” laws of such
jurisdictions as any Holder of Registrable Securities covered by a Shelf
Registration Statement and each underwriter of an underwritten offering of
Registrable Securities shall reasonably request, and do any and all other acts
and things which may be reasonably necessary or advisable to enable each such
Holder and underwriter to consummate the disposition in each such jurisdiction
of such Registrable Securities owned by such Holder; provided,
however,
that
the Company shall not be required to (i) qualify as a foreign corporation or
as
a dealer in securities in any jurisdiction where it would not otherwise be
required to qualify but for this Section 3(d), or (ii) take any action which
would subject it to general service of process or taxation in any such
jurisdiction where it is not then so subject;
(e) notify
promptly each Holder of Registrable Securities under a Shelf Registration
Statement that has provided the information required by Section 2.1(d) and,
if
requested by such Holder, confirm such advice in writing promptly (i) when
a
Shelf Registration Statement has become effective and when any post-effective
amendments thereto have become effective, (ii) of any request by the SEC or
any
state securities authority for post-effective amendments and supplements to
a
Shelf Registration Statement and Prospectus or for additional information
relating thereto after the Shelf Registration Statement has become effective,
(iii) of the issuance by the SEC or any state securities authority of any stop
order suspending the effectiveness of a Shelf Registration Statement or the
initiation of any proceedings for that purpose, (iv) of the happening of any
event or the discovery of any facts during the period a Shelf Registration
Statement is effective which makes any statement made in such Shelf Registration
Statement or the related Prospectus untrue in any material respect or which
requires the making of any changes in such Shelf Registration Statement or
Prospectus 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, (v) 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 threatening of any proceeding for such
purpose and (vi) of any determination by the Company that a post-effective
amendment to such Shelf Registration Statement would be appropriate, other
than
a post-effective amendment solely to add selling Holders;
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(f) furnish
to each Initial Purchaser on behalf of the Holders of Registrable Securities
and
to special counsel to the Initial Purchasers (i) copies of any comment letters
received from the SEC with respect to a Shelf Registration Statement, and,
if
requested, with respect to any documents incorporated therein and (ii) any
other
request by the SEC or any state securities authority for amendments or
supplements to a Shelf Registration Statement and Prospectus or for additional
information with respect to the Shelf Registration Statement and
Prospectus;
(g) use
commercially reasonable efforts to obtain the withdrawal of any order suspending
the effectiveness of a Shelf Registration Statement at the earliest possible
moment and provide prompt notice to each Holder of the withdrawal of such order;
(h) furnish
to each Holder of Registrable Securities that has provided the information
required by Section 2.1(d), and each underwriter, if any, without charge, at
least one conformed copy of each Shelf Registration Statement and any
post-effective amendment thereto, including financial statements and schedules
(without documents incorporated therein by reference and all exhibits thereto,
unless requested);
(i) if
electronic global certificates for the Registrable Securities are not then
available, cooperate with the selling Holders of Registrable Securities to
facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold and not bearing any restrictive legends (other
than as required by applicable law); and enable such Registrable Securities
to
be in such denominations (consistent with the provisions of the Indenture)
and
registered in such names as the selling Holders or the underwriters, if any,
may
reasonably request at least three business days prior to the closing of any
sale
of Registrable Securities;
(j) upon
the
occurrence of any event or the discovery of any facts, each as contemplated
by
Sections 3(e)(ii), (iii), (iv), (v) and (vi) hereof, as promptly as practicable
after the occurrence of such an event, use commercially reasonable efforts
to
prepare a supplement or post-effective amendment to the Shelf Registration
Statement or the related Prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter delivered
to the purchasers of the Registrable Securities, such Prospectus will not
contain at the time of such delivery any untrue statement of a material fact
or
omit to state a material fact necessary to make the statements therein, in
light
of the circumstances under which they were made, not misleading or will remain
so qualified. At such time as such public disclosure is otherwise made or the
Company determines that such disclosure is not necessary, in each case to
correct any misstatement of a material fact or to include any omitted material
fact, the Company agrees promptly to notify each Holder of Registrable
Securities covered by such Shelf Registration Statement of such determination
and to furnish each Holder such number of copies of the Prospectus as amended
or
supplemented, as such Holder may reasonably request;
10
(k) no
less
than three business days prior to the filing of any Shelf Registration
Statement, any Prospectus, any amendment to a Shelf Registration Statement
or
amendment or supplement to a Prospectus (other than amendments and supplements
that do nothing more than name Holders and provide information with respect
thereto), provide copies of such document to the Initial Purchasers on behalf
of
such Holders, and make representatives of the Company, as shall be reasonably
requested by special counsel to the Holders of Registrable Securities or the
Initial Purchasers on behalf of such Holders, available for discussion of such
document;
(l) obtain
CUSIP numbers for all Registrable Securities not later than the effective date
of the Shelf Registration Statement and provide the Trustee with printed
certificates for the Registrable Securities in a form eligible for deposit
with
the Depositary;
(m) (i)
cause
the Indenture to be qualified under the 1939 Act in connection with the
registration of the Registrable Securities, (ii) cooperate with the Trustee
and
the Holders to effect such changes to the Indenture as may be required for
the
Indenture to be so qualified in accordance with the terms of the 1939 Act,
and
(iii) execute, and use commercially reasonable efforts to cause the Trustee
to
execute, all documents as may be required to effect such changes, and all other
forms and documents required to be filed with the SEC to enable the Indenture
to
be so qualified in a timely manner;
(n) enter
into such customary agreements (including, if requested, an underwriting
agreement in customary form) and take all other customary and appropriate
actions, if any, as the Majority Holders shall reasonably request in writing
in
order to expedite or facilitate the disposition of such Registrable Securities,
including, but not limited to:
(i)
obtain
opinions of counsel to the Company and updates thereof addressed to each selling
Holder and the underwriters, if any, covering the matters set forth in the
opinions of such counsel delivered at the Closing Date as are customarily
covered in legal opinions in connection with underwritten offering of
securities;
(ii) obtain
“comfort” letters and updates thereof from the Company’s independent certified
public accountants (and, if necessary, any other independent certified public
accountants of the subsidiary of the Company or of any business acquired by
the
Company for which financial statements are, or are required to be, included
in
the Shelf Registration Statement) addressed to the underwriters, if any, and
use
reasonable efforts to have such letter addressed to the selling Holders of
Registrable Securities (to the extent consistent with Statement on Auditing
Standards No. 72 of the American Institute of Certified Public Accounts), such
letters substantially in the form and covering the matters covered in the
comfort letter delivered on the Closing Date;
(iii) if
an
underwriting agreement is entered into, cause the same to set forth
indemnification provisions and procedures substantially equivalent to the
indemnification provisions and procedures set forth in Section 4 hereof with
respect to the underwriters and all other parties to be indemnified pursuant
to
said Section or, at the request of any underwriters, in the form customarily
provided to such underwriters in similar types of transactions;
and
11
(iv) deliver
such documents and certificates as may be reasonably requested and as are
customarily delivered in similar offerings to the Holders of a majority in
principal amount of the Registrable Securities being sold and the managing
underwriters, if any.
The
above
shall be done only in connection with any underwritten offering of Registrable
Securities using such Shelf Registration Statement pursuant to an underwriting
or similar agreement as and to the extent required thereunder, and as reasonably
requested by the Majority Holders thereto. Anything herein to the contrary
notwithstanding, the Company will not be required to pay the costs and expenses
of, or to participate in the marketing or “road show” presentations of, more
than one underwritten offering of Registrable Securities every 12 months
commencing on the Closing Date. The Company will not be required to pay the
costs and expenses of, or to participate in the marketing or “road show”
presentations of, an underwritten offering of Registrable Securities unless
requested by the Majority Holders;
(o) if
reasonably requested in connection with a disposition of Registrable Securities,
make available for inspection during business hours by representatives of the
Holders of the Registrable Securities, any underwriters participating in any
disposition pursuant to a Shelf Registration Statement and any counsel or
accountant retained by any of the foregoing, all financial and other records,
pertinent corporate documents and properties of the Company reasonably requested
in writing by any such persons, and cause the respective officers, directors,
employees, and any other agents of the Company to supply all information
reasonably requested by any such representative, underwriter, special counsel
or
accountant in connection with a Shelf Registration Statement, and make such
representatives of the Company available for discussion of such documents as
shall be reasonably requested by the Initial Purchasers, in each case as is
customary for “due diligence” investigations; provided
that, to
the extent the Company, in its reasonable discretion, agrees to disclose
material non-public information, such persons shall first agree in writing
with
the Company that any such non-public information shall be kept confidential
by
such persons and shall be used solely for the purposes of exercising rights
under this Agreement and such person shall not engage in trading any securities
of the Company until such material non-public information becomes properly
publicly available, unless (i) disclosure of such information is required by
court or administrative order or is necessary to respond to inquiries of
regulatory authorities, (ii) disclosure of such information is required by
law
(including any disclosure requirements pursuant to federal securities laws
in
connection with the filing of any Shelf Registration Statement or the use of
any
Prospectus referred to in this Agreement upon a customary opinion of counsel
for
such persons delivered and reasonably satisfactory to the Company), (iii) such
information becomes generally available to the public other than as a result
of
a disclosure or failure to safeguard by any such person, (iv) such information
becomes available to any such person from a source other than the Company and
such source is not bound by a confidentiality agreement, or (v) such non-public
information ceases to be material; provided
further,
that,
the foregoing inspection and information gathering shall, to the greatest extent
possible, be coordinated on behalf of all the Holders and the other parties
entitled thereto by special counsel to the Holders;
12
(p) if
requested in writing by any selling Holder of Registrable Securities that has
provided the information required by Section 2.1(d), a reasonable time prior
to
filing the Shelf Registration Statement, any Prospectus forming a part thereof,
any amendment to the Shelf Registration Statement or amendment or supplement
to
such Prospectus (other than amendments and supplements that do nothing more
than
name Holders and provide information with respect thereto), (i) provide
copies of such document to the Holders of Registrable Securities that have
provided the information required by Section 2.1(d), to the Initial Purchasers,
to special counsel for the Holders and to the underwriter or underwriters of
an
underwritten offering of Registrable Securities, if any, (ii) make such
changes in any such document prior to the filing thereof as the Initial
Purchasers, the special counsel to the Holders or the underwriter or
underwriters reasonably agree should be included therein and provide to the
Company in writing for inclusion therein within three business days of delivery
of such copies, (iii) if requested by any selling Holder of Registrable
Securities that has provided the information required by Section 2.1(d), not
file any such document in a form (A) to which the Majority Holders, the Initial
Purchasers on behalf of the Holders of Registrable Securities, special counsel
for the Holders of Registrable Securities or any underwriter shall not have
previously been advised and furnished a copy of or (B) to which the
Majority Holders, the Initial Purchasers on behalf of the Holders of Registrable
Securities, special counsel to the Holders of Registrable Securities or any
underwriter shall reasonably object within three business days of delivery
of
such copies, and (iv) make the representatives of the Company available for
discussion of such document as shall be reasonably requested in writing by
the
Holders of Registrable Securities, the Initial Purchasers on behalf of such
Holders, special counsel for the Holders of Registrable Securities or any
underwriter; provided, however, that the foregoing discussion shall be
coordinated on behalf of the parties entitled thereto by the special counsel
to
the Holders;
(q) if
requested by any selling Holder or the underwriters, if any, incorporate in
the
Shelf Registration Statement or Prospectus, pursuant to a supplement or
post-effective amendment if necessary, such information as such selling Holder
or underwriter, if any, may reasonable request in writing to have included
therein with respect to the name or names of such selling Holder, the number
of
shares of Common Stock or principal amount of Securities owned by such Holder,
the plan of distribution of the Registrable Securities (as required by Item
508
of Regulation S-K), the principal amount of Securities or number of shares
of
Common Stock being sold, the purchase price being paid therefor, and any other
terms of the offering of the Registrable Securities to be sold in such
offering;
(r) use
commercially reasonable efforts to cause all Registrable Securities to be listed
on any securities exchange or inter-dealer quotation system on which similar
debt securities issued by the Company are then listed if requested by the
Majority Holders, or if requested by the underwriter or underwriters of an
underwritten offering of Registrable Securities, if any;
(s) use
commercially reasonable efforts to cause the Registrable Securities to be rated
by the appropriate rating agencies if requested by the underwriter or
underwriters of an underwritten public offering of Registrable Securities,
if
any;
(t) otherwise
comply with all applicable rules and regulations of the SEC and make available
to its security holders, as soon as reasonably practicable, an earnings
statement covering at least 12 months which shall satisfy the provisions of
Section 11(a) of the 1933 Act and Rule 158 thereunder; and
13
(u) 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 and its
counsel (including any “qualified independent underwriter” that is required to
be retained in accordance with the rules and regulations of the
NASD).
Without
limiting the provisions of Section 2.1(d), the Company may (as a condition
to
such Holder’s participation in the Shelf Registration) require each Holder of
Registrable Securities to furnish to the Company such information regarding
the
Holder and the proposed distribution by such Holder of such Registrable
Securities as the Company may from time to time reasonably request in
writing.
Each
Holder agrees that, upon receipt of any notice from the Company of the happening
of any event or the discovery of any facts, each of the kind described in
Section 3(e)(ii), (iii), (iv), (v) or (vi) hereof, such Holder will forthwith
discontinue disposition of Registrable Securities pursuant to the Prospectus
included in the Shelf Registration Statement until such Holder’s receipt of the
copies of the supplemented or amended Prospectus contemplated by Section 3(j)
hereof or written notice from the Company that the Shelf Registration Statement
is again effective and no amendment or supplement is needed, and, if so directed
by the Company, such Holder will deliver to the Company (at its expense) all
copies in such Holder’s possession, other than permanent file copies then in
such Holder’s possession, of the Prospectus covering such Registrable Securities
current at the time of receipt of such notice.
In
the
event that a Registration Default has occurred and is continuing, the Company
shall not file any Registration Statement with respect to any securities (within
the meaning of Section 2(1) of the ▇▇▇▇ ▇▇▇) of the Company or its subsidiary
other than Registrable Securities.
If
any of
the Registrable Securities covered by any Shelf Registration Statement are
to be
sold in an underwritten offering, the underwriter or underwriters and manager
or
managers that will manage such offering will be selected by the Majority Holders
of such Registrable Securities included in such offering and shall be acceptable
to the Company. No Holder of Registrable Securities may participate in any
underwritten registration hereunder unless such Holder (a) agrees to sell such
Holder’s Registrable Securities on the basis provided in any underwriting
arrangements approved by the persons entitled hereunder to approve such
arrangements and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
4. Indemnification;
Contribution.
(a) The
Company agrees to indemnify and hold harmless each Initial Purchaser, each
Holder, each Person who participates as an underwriter, if any (any such Person
being an “Underwriter”) and each Person, if any, who controls any such Holder or
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20
of
the 1934 Act as follows:
14
(i) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred,
arising out of any untrue statement or alleged untrue statement of a material
fact contained in any Shelf Registration Statement (or any amendment or
supplement thereto) pursuant to which Registrable Securities were registered
under the 1933 Act, including all documents incorporated therein by reference,
or the omission or alleged omission therefrom of a material fact required to
be
stated therein or necessary to make the statements therein not misleading,
or
arising out of any untrue statement or alleged untrue statement of a material
fact contained in any Prospectus (or any amendment or supplement thereto) or
any
Issuer Free Writing Prospectus (or any amendment or supplement thereto) or
the
omission or alleged omission therefrom of a material fact necessary in order
to
make the statements therein, in the light of the circumstances under which
they
were made, not misleading;
(ii) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred,
to the extent of the aggregate amount paid in settlement of any litigation,
or
any investigation or proceeding by any governmental agency or body, commenced
or
threatened, or of any claim whatsoever based upon any such untrue statement
or
omission, or any such alleged untrue statement or omission; provided
that
(subject to Section 4(d) below) any such settlement is effected with the written
consent of the Company; and
(iii) against
any and all expense whatsoever, as incurred (including the reasonable and
documented fees and disbursements of counsel chosen by any indemnified party),
reasonably incurred and documented in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based upon
any
such untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under subparagraph
(i)
or (ii) above;
provided,
however,
that
this indemnity agreement shall not apply to any loss, liability, claim, damage
or expense to the extent arising out of (A) any untrue statement or omission
or
alleged untrue statement or omission made in reliance upon and in conformity
with written information furnished to the Company by or on behalf of any Holder
or Underwriter, if any, expressly for use in a Shelf Registration Statement
(or
any amendment thereto), any Prospectus (or any amendment or supplement thereto)
or any Issuer Free Writing Prospectus (or any amendment or supplement thereto),
(B) use of a Prospectus during a period when use of such Prospectus has been
validly suspended pursuant to Section 2.5 hereof, provided that such Holder
has
received prior notice of such suspension or (C) failure of such Holder to
deliver a prospectus, as then amended or supplemented, as required by applicable
laws, provided that the Company shall have delivered to such Holder such
Prospectus, as then amended or supplemented.
(b) Each
Holder, severally, but not jointly, agrees to indemnify and hold harmless the
Company, each Initial Purchaser, each Underwriter, if any, and the other selling
Holders, and each of their respective directors and officers, and each Person,
if any, who controls the Company, any of the Initial Purchasers, any Underwriter
or any other selling Holder within the meaning of Section 15 of the 1933 Act
or
Section 20 of the 1934 Act, against any and all loss, liability, claim, damage
and expense described in the indemnity contained in Section 4(a) hereof, as
incurred and documented, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Shelf
Registration Statement (or any amendment thereto) or any Prospectus included
therein (or any amendment or supplement thereto) or any Issuer Free Writing
Prospectus in reliance upon and in conformity with written information with
respect to such Holder furnished to the Company by or on behalf of such Holder
expressly for use in the Shelf Registration Statement (or any amendment thereto)
or such Prospectus (or any amendment or supplement thereto) or any Issuer Free
Writing Prospectus; provided,
however,
that no
such Holder shall be liable for any claims hereunder in excess of the amount
of
net proceeds received by such Holder from the sale of Registrable Securities
pursuant to such Shelf Registration Statement.
15
(c) Each
indemnified party shall give notice as promptly as reasonably practicable to
each indemnifying party of any action or proceeding commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify
an
indemnifying party shall not relieve such indemnifying party from any liability
hereunder to the extent it is not materially prejudiced as a result thereof
and
in any event shall not relieve it from any liability which it may have otherwise
than on account of this indemnity agreement. An indemnifying party may
participate at its own expense in the defense of such action; provided,
however,
that
counsel to the indemnifying party shall not (except with the consent of the
indemnified party) also be counsel to the indemnified party. In no event shall
the indemnifying party or parties be liable for the reasonable and documented
fees and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances.
No
indemnifying party shall (i) without the prior written consent of the
indemnified parties (which consent shall not be unreasonably withheld), settle
or compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 4 (whether
or
not the indemnified parties are actual or potential parties thereto), unless
such settlement, compromise or consent (A) includes an unconditional
release of each indemnified party from all liability arising out of such
litigation, investigation, proceeding or claim and (B) 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 or (ii) be liable for any settlement of
any such action effected without its prior written consent (which consent shall
not be unreasonably withheld).
(d) Notwithstanding
clause (ii) of Section 4(c), if at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified party for fees
and
expenses of counsel, such indemnifying party agrees that it shall be liable
for
any settlement of the nature contemplated by Section 4(a)(ii) effected without
its written consent if (i) such settlement is entered into more than 45 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 such indemnified party in
accordance with such request prior to the date of such
settlement.
16
(e) If
the
indemnification provided for in this Section 4 is for any reason unavailable
to
or insufficient to hold harmless an indemnified party in respect of any losses,
liabilities, claims, damages or expenses referred to therein, then each
indemnifying party shall contribute to the aggregate amount of such losses,
liabilities, claims, damages and expenses incurred by such indemnified party,
as
incurred, in such proportion as is appropriate to reflect the relative fault
of
the Company on the one hand and the Holders and the Initial Purchasers on the
other hand in connection with the statements or omissions which resulted in
such
losses, liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The
relative fault of the Company on the one hand and the Holders and the Initial
Purchasers on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Company, or by the Holders or the Initial Purchasers and the
parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The
Company, the Holders and the Initial Purchasers agree that it would not be
just
and equitable if contribution pursuant to this Section 4 were determined by
pro
rata allocation (even if the Initial Purchasers were treated as one entity
for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this Section 4. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
and documented by an indemnified party and referred to above in this Section
4
shall be deemed to include any legal or other expenses reasonably incurred
by
such indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding
the provisions of this Section 4, the Initial Purchasers shall not be required
to contribute any amount in excess of the amount by which the total price at
which the Securities sold by it were offered exceeds the amount of any damages
which the Initial Purchasers have otherwise been required to pay by reason
of
such untrue or alleged untrue statement or omission or alleged
omission.
No
Person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of
the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation.
For
purposes of this Section 4, each Person, if any, who controls any of the Initial
Purchasers or Holder within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act shall have the same rights to contribution as the Initial
Purchaser or Holder, and each director of the Company, and each Person, if
any,
who controls the Company within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as the
Company. The obligations of the Company, the Initial Purchasers and the Holders
pursuant to this Section 4 shall be in addition to any liability that such
party may otherwise have.
17
5. Miscellaneous.
5.1 Rule
144 and Rule 144A.
For so
long as the Company is subject to the reporting requirements of Section 13
or
15(d) of the 1934 Act, the Company covenants that it will file the reports
required to be filed by it under Section 13 of 15(d) of the 1934 Act and the
rules and regulations adopted by the SEC thereunder. If the Company ceases
to be
so required to file such reports, the Company covenants that it will upon the
request of any Holder of Registrable Securities (a) make publicly available
such
information as is necessary to permit sales pursuant to Rule 144 under the
1933
Act, (b) deliver such information to a prospective purchaser as is necessary
to
permit sales pursuant to Rule 144A under the 1933 Act and it will take such
further action as any Holder of Registrable Securities may reasonably request
for such purpose, and (c) take such further action that is reasonable in the
circumstances, in each case, to the extent required from time to time to enable
such Holder to sell its Registrable Securities without registration under the
1933 Act within the limitation of the exemptions provided by (i) Rule 144 under
the 1933 Act, as such Rule may be amended from time to time, (ii) Rule 144A
under the 1933 Act, as such Rule may be amended from time to time, or (iii)
any
similar rules or regulations hereafter adopted by the SEC. Upon the request
of
any Holder of Registrable Securities, the Company will deliver to such Holder
a
written statement as to whether it has complied with such
requirements.
5.2 No
Inconsistent Agreements.
The
Company has not entered into and the Company shall not, after the date of this
Agreement, enter into any agreement which is inconsistent with the rights
granted to the Holders of Registrable Securities in this Agreement or otherwise
conflicts with the provisions hereof. The rights granted to the Holders
hereunder do not and will not for the term of this Agreement in any way conflict
with the rights granted to the holders of any of the Company’s other issued and
outstanding securities under any such agreements.
5.3 No
Adverse Actions Affecting Registration Rights.
Subject
to the rights of the Company to invoke and maintain a Suspension Period, the
Company shall not, directly or indirectly, intentionally take any action with
respect to the Registrable Securities as a class that would adversely affect
the
ability of the Holders of Registrable Securities to include such Registrable
Securities in a registration undertaken pursuant to this Agreement.
5.4 Amendments
and Waivers.
The
provisions of this Agreement, including the provisions of this sentence, may
not
be amended, modified or supplemented, and waivers or consents to departures
from
the provisions hereof may not be given unless the Company has obtained the
written consent of Holders of at least a majority in aggregate principal amount
of the outstanding Registrable Securities (with Holders of Securities deemed
to
be the Holders, for purposes of this Section 5.4, of the number of outstanding
shares of Common Stock into which such Registrable Securities are or could
be
convertible on the date that consent would be required) affected by such
amendment, modification, supplement, waiver or departure. Notwithstanding the
foregoing, this Agreement may be amended by a written agreement between the
Company and the Initial Purchasers, without the consent of the Holders of the
Registrable Securities, in order to cure any ambiguity or to correct or
supplement any provision contained herein, provided that no such amendment
shall
adversely affect the interest of the Holders of Registrable Securities. Each
Holder of Registrable Securities outstanding at the time of any amendment,
modification, waiver or consent pursuant to this Section 5.4, shall be bound
by
such amendment, modification, waiver or consent, whether or not any notice
or
writing indicating such amendment, modification, waiver or consent is delivered
to such Holder.
18
5.5 Notices.
All
notices and other communications provided for or permitted hereunder shall
be
made in writing by hand delivery, registered first-class mail, facsimile, or
any
courier guaranteeing overnight delivery (a) if to a Holder, at the most current
address given by such Holder to the Company in a Questionnaire or by means
of a
notice given in accordance with the provisions of this Section 5.5, which
address initially is the address set forth in the Purchase Agreement with
respect to the Initial Purchasers; and (b) if to the Company, initially at
the
Company’s address set forth in the Purchase Agreement, and thereafter at such
other address of which notice is given in accordance with the provisions of
this
Section 5.5.
All
such
notices and communications shall be deemed to have been duly given: at the
time
delivered by hand, if personally delivered; two business days after being
deposited in the mail, postage prepaid, if mailed; when receipt is acknowledged,
if sent by facsimile; and on the next business day if timely delivered to an
overnight courier.
Copies
of
all such notices, demands, or other communications shall be concurrently
delivered by the person giving the same to the Trustee under the Indenture,
at
the address specified in such Indenture.
5.6 Successors
and Assigns.
This
Agreement shall inure to the benefit of and be binding upon the successors,
assigns and transferees of each of the parties, including, without limitation
and without the need for an express assignment, subsequent Holders; 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 Purchase
Agreement or 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, including the restrictions on resale
set forth in this Agreement and, if applicable, the Purchase Agreement, and
such
person shall be entitled to receive the benefits hereof. The Initial Purchasers
(in their capacity as Initial Purchasers) shall have no liability or obligation
to the Company with respect to any failure by a Holder, other than the Initial
Purchasers, to comply with, or breach by any Holder, other than the Initial
Purchasers, of, any of the obligations of such Holder under this
Agreement.
5.7 Third
Party Beneficiaries.
The
Initial Purchasers (even if the Initial Purchasers are not Holders of
Registrable Securities) shall be a third party beneficiary to the agreements
made hereunder between the Company, on the one hand, and the Holders, on the
other hand, and shall have the right to enforce such agreements directly to
the
extent it deems such enforcement necessary or advisable to protect its rights
or
the rights of Holders hereunder. Each Holder of Registrable Securities shall
be
a third party beneficiary to the agreements made hereunder between the Company,
on the one hand, and the Initial Purchasers, on the other hand, and shall have
the right to enforce such agreements directly to the extent it deems such
enforcement necessary or advisable to protect its rights
hereunder.
19
5.8 Specific
Enforcement.
Without
limiting the remedies available to the Initial Purchasers and the Holders,
the
Company acknowledges that any failure by the Company to comply with its
obligations under Section 2.1 hereof may result in material irreparable injury
to the Initial Purchasers or the Holders for which there is no adequate remedy
at law, that it may not be possible to measure damages for such injuries
precisely and that, in the event of any such failure, the Initial Purchasers
or
any Holder may seek such relief as may be required to specifically enforce
the
Company’s obligations under Section 2.1 hereof.
5.9 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.
5.10 Headings.
The
headings in this Agreement are for convenience of reference only and shall
not
limit or otherwise affect the meaning hereof.
5.11 GOVERNING
LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF
THE STATE OF NEW YORK (INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK
GENERAL OBLIGATIONS LAW BUT EXCLUDING ALL OTHER CHOICE OF LAW AND CONFLICT
OF
LAW RULES).
5.12 Severability.
In the
event that 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.
5.13 Entire
Agreement.
This
Agreement is intended by the parties as a final expression of their agreement
and intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained
herein. There are no restrictions, promises, warranties or undertakings, other
than those set forth or referred to herein with respect to the registration
rights granted by the Company with respect to the Registrable Securities. This
Agreement supersedes all prior agreements and understandings between the parties
with respect to such subject matter.
20
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
written above.
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By
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/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title:
Chief Operating Officer, Chief Financial Officer and
Secretary
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Confirmed
and accepted as
of
the
date first above written:
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▇▇▇▇▇▇▇
LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
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INCORPORATED
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By:
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/s/
▇▇▇▇▇▇
Thong
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Name:
▇▇▇▇▇▇ Thong
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Title:
Director
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