Hedging Transactions. (i) The Company agrees that, in connection with any proposed Hedging Transaction, if, in the reasonable judgment of Holders’ Counsel, it is necessary or desirable to register under the Securities Act such Hedging Transaction or sales or transfers (whether short or long) of Registrable Class Securities in connection therewith, then the Company shall use its reasonable best efforts to take such actions (which may include, among other things, the filing of a post-effective amendment to a Registration Statement to include additional or changed information that is material or is otherwise required to be disclosed, including a description of such Hedging Transaction, the name of the Hedging Counterparty, identification of the Hedging Counterparty or its Affiliates as underwriters or potential underwriters, if applicable, or any change to the plan of distribution) as may reasonably be required to register such Hedging Transaction or sales or transfers of Registrable Class Securities in connection therewith under the Securities Act in a manner consistent with the rights and obligations of the Company hereunder with respect to the registration of Registrable Securities. Any information provided by the Holders regarding the Hedging Transaction that is included in a Registration Statement, Prospectus or Free Writing Prospectus pursuant to this Section 7(e) shall be deemed to be information provided by the Holders selling Registrable Securities pursuant to such Registration Statement for purposes of Section 7(b). (ii) All Registration Statements in which Holders may include Registrable Securities under this Agreement shall be subject to the provisions of this Section 7(e), and the registration of Registrable Class Securities thereunder pursuant to this Section 7(e) shall be subject to the provisions of this Agreement applicable to any such Registration Statements; provided, however, that the selection of any Hedging Counterparty shall not be subject to Section 3(g), but the Hedging Counterparty shall be selected by the Holders of a majority of the Registrable Class Securities subject to the Hedging Transaction that are proposed to be included in such Registration Statement. (iii) If in connection with a Hedging Transaction, a Hedging Counterparty or any Affiliate thereof is (or may be considered) an underwriter or selling stockholder, then it shall be required to provide customary indemnities to the Company regarding the plan of distribution and like matters. (iv) The Company further agrees to include, under the caption “Plan of Distribution” (or the equivalent caption), in each Registration Statement, and any related Prospectus (to the extent such inclusion is permitted under applicable Commission regulations and is consistent with comments received from the Commission during any Commission review of the Registration Statement), language substantially in the form of Schedule 1 hereto and to include in each Prospectus supplement filed in connection with any proposed Hedging Transaction language mutually agreed upon by the Company, the relevant Holders and the Hedging Counterparty describing such Hedging Transaction.
Appears in 8 contracts
Samples: Registration Rights Agreement (Pangaea Logistics Solutions Ltd.), Registration Rights Agreement (Pangaea Logistics Solutions Ltd.), Registration Rights Agreement (Quartet Merger Corp.)
Hedging Transactions. The Lender agrees that as long as it or any of its Affiliates holds any Securities it shall not, and the Lender shall cause it Affiliates not to, hold any short sale position or any hedging position with respect to any Company Securities in excess of $25,000; provided that, notwithstanding the foregoing, the Lender or such Affiliates may enter into any such short position or hedging position (i) The Company agrees that, in connection with any proposed Hedging Transaction, if, in the reasonable judgment of Holders’ Counsel, it is necessary or desirable to register under the Securities Act such Hedging Transaction or sales or transfers (whether short or long) of Registrable Class Securities in connection therewith, then the Company shall use its reasonable best efforts to take such actions (which may include, among other things, the filing of a post-effective amendment to a Registration Statement to include additional or changed information that is material or is otherwise required to be disclosed, including a description of such Hedging Transaction, the name of the Hedging Counterparty, identification of the Hedging Counterparty or its Affiliates as underwriters or potential underwriters, if applicable, or any change prior to the plan of distribution) Effective Date, at any time during any period that that the bid price for the Common Stock as may reasonably be required to register such Hedging Transaction or sales or transfers of Registrable Class Securities in connection therewith under the Securities Act in a manner consistent with the rights and obligations of the Company hereunder with respect to the registration of Registrable Securities. Any information provided reported by the Holders regarding Reporting Service is equal to or greater than $0.25 (and the Hedging Transaction that is included in a Registration Statement, Prospectus Lender or Free Writing Prospectus such Affiliate shall be entitled to hold such short position or hedging position entered into pursuant to this Section 7(eclause (i) shall be deemed even if the bid price for the Common Stock declines to be information provided by the Holders selling Registrable Securities pursuant to such Registration Statement for purposes of Section 7(b).
less than $0.25) and (ii) All Registration Statements in which Holders may include Registrable Securities under this Agreement shall be subject to the provisions of this Section 7(e), and the registration of Registrable Class Securities thereunder pursuant to this Section 7(e) shall be subject to the provisions of this Agreement applicable to any such Registration Statements; provided, however, that the selection of any Hedging Counterparty shall not be subject to Section 3(g), but the Hedging Counterparty shall be selected by the Holders of a majority of the Registrable Class Securities subject to the Hedging Transaction that are proposed to be included in such Registration Statement.
(iii) If in connection with a Hedging Transaction, a Hedging Counterparty conversion under the Debenture or any Affiliate thereof is (or may be considered) an underwriter or selling stockholder, then exercise of the Warrants. The Lender agrees that it shall not transfer any Securities unless the transferee thereof explicitly agrees in writing to be required to provide customary indemnities to bound by the Company regarding the plan of distribution and like matters.
(iv) The Company further agrees to includeterms hereof, under the caption “Plan of Distribution” (or the equivalent caption), in each Registration Statement, and any related Prospectus (to the extent such inclusion is permitted under applicable Commission regulations and is consistent with comments received from the Commission during any Commission review of the Registration Statement), language substantially in the form of Schedule 1 hereto and to include in each Prospectus supplement filed except in connection with transfers of Shares that are not Registrable Securities. The Company agrees that unless and until (i) the Company has affirmatively demonstrated by the use of specific clear and convincing evidence that the Lender has traded in securities of the Company in violation of applicable federal securities laws and (ii) there has been issued against the Lender a final non-appealable decision from a court of competent jurisdiction to the effect that the Lender has violated applicable federal securities laws with respect to its trading of the Company's securities, the Lender shall be assumed to be in compliance with such laws and the Company shall remain obligated to fulfill all of its obligations under each of the Transaction Agreements; provided, further, that the Company shall under no circumstances be entitled to request or demand that the Lender affirmatively demonstrate that it has not engaged in any proposed Hedging such violations as a condition to the Company's fulfillment of its obligations under any of the Transaction language mutually agreed upon by Agreements and shall not assert, whether as an affirmative claim or a defense to any claim made against the Company, that the relevant Holders and Lender's failure to demonstrate such absence of such violations (including, but not limited to, its failure to provide any trading or other records, it being specifically agreed that the Hedging Counterparty describing Company, directly or indirectly, will request the Lender or any of its agents, advisors, brokers or representatives to provide such Hedging Transactionrecords in any forum) serves either as a defense to any breach of the Company's obligations under any of the Transaction Agreements or otherwise reflects adversely in any manner on the legality of any action taken by the Lender.
Appears in 8 contracts
Samples: Securities Purchase Agreement (Advanced Technology Industries Inc), Securities Purchase Agreement (Advanced Technology Industries Inc), Securities Purchase Agreement (Advanced Technology Industries Inc)
Hedging Transactions. (i) The Company agrees that, in connection with any proposed Hedging Transaction, if, in the reasonable judgment of counsel to the Holders’ Counsel, it is necessary or desirable to register under the Securities Act such Hedging Transaction or sales or transfers (whether short or long) of securities of the same class as the Registrable Class Securities in connection therewith, then the Company shall use its reasonable best efforts to take such actions (which may include, among other things, the filing of a post-effective amendment to a Registration Statement to include additional or changed information that is material or is otherwise required to be disclosed, including a description of such Hedging Transaction, the name of the Hedging Counterparty, identification of the Hedging Counterparty or its Affiliates affiliates as underwriters or potential underwriters, if applicable, or any change to the plan of distribution) as may reasonably be required to register such Hedging Transaction or sales or transfers of securities of the same class as the Registrable Class Securities in connection therewith under the Securities Act in a manner consistent with the rights and obligations of the Company hereunder with respect to the registration of Registrable Securities. Any information provided by the Holders regarding the Hedging Transaction that is included in a Registration Statement, Prospectus or Free Writing Prospectus other document pursuant to this Section 7(e) 2.13 shall be deemed to be information provided by the Holders selling Registrable Securities pursuant to such Registration Statement for purposes of Section 7(b)2.8.
(ii) All Registration Statements in which Holders may include Registrable Securities under this Agreement shall be subject to the provisions of this Section 7(e)2.13, and the registration of securities of the same class as the Registrable Class Securities thereunder pursuant to this Section 7(e) 2.13 shall be subject to the provisions of this Agreement applicable to any such Registration Statements; provided, however, that the selection of any Hedging Counterparty shall not be subject to Section 3(g), but in the Hedging Counterparty shall be selected by sole discretion of the Holders of a majority of the Registrable Class Securities subject to the Hedging Transaction that are proposed to be included in such Registration Statement.
(iii) If in connection with a Hedging Transaction, a Hedging Counterparty or any Affiliate affiliate thereof is (or may be consideredconsidered under applicable SEC guidance) an underwriter or selling stockholder, then it shall shall, if requested by the relevant Holder, be required to provide customary indemnities to the Company regarding the plan of distribution and like matters.
(iv) The Company further agrees to include, under the caption “Plan of Distribution” (or the equivalent caption), in each Registration Statement, and any related Prospectus (to the extent such inclusion is permitted under applicable Commission regulations and is consistent with comments received from the Commission during any Commission review of the Registration Statement), language substantially in the form of Schedule 1 hereto and to include in each Prospectus supplement filed in connection with any proposed Hedging Transaction language such disclosure as is mutually agreed upon by the Company, the relevant Holders and the Hedging Counterparty describing such Hedging Transaction.
Appears in 7 contracts
Samples: Registration Rights Agreement (HC2 Holdings, Inc.), Registration Rights Agreement (HC2 Holdings, Inc.), Registration Rights Agreement (Benefit Street Partners LLC)
Hedging Transactions. (a) Pursuant to Section 4.1(i), Liberty is entitled to engage in one or more Hedging Transactions, provided that:
(i) The Company agrees that, in connection with any proposed Hedging Transaction, if, in the reasonable judgment no shares of Holders’ Counsel, it is necessary or desirable to register under the Securities Act such Class B Common Stock shall be used for a Hedging Transaction or sales or transfers unless such shares are first converted into shares of Common Stock in accordance with Section 4.4(b) (whether short or longafter Xxxxxx has had the opportunity to exercise his right to exchange such shares of Class B Common Stock for shares of Common Stock pursuant to Section 4.4); and
(ii) the shares of Registrable Class Securities in connection therewithCommon Stock subject to any Hedging Transaction shall remain subject to the Liberty Proxy and no Hedging Transaction shall, then prior to the Company shall use its reasonable best efforts to take such actions (which may include, among other things, the filing of a post-effective amendment to a Registration Statement to include additional or changed information that is material or is otherwise required to be disclosed, including a description settlement of such Hedging Transaction, the name impair Xxxxxx’x right to vote any shares of the Common Stock pursuant to Section 3.3 (it being understood that a settlement of a Hedging Counterparty, identification Transaction may result in a disposition of the Hedging Counterparty or its Affiliates as underwriters or potential underwriters, if applicable, or any change shares subject to the plan of distribution) as may reasonably be required to register such Hedging Transaction and that, upon such disposition and the termination of all of Liberty’s legal and beneficial ownership with respect to and economic interests in such shares, Xxxxxx will not have the right to vote such shares); provided that such right shall not be deemed to be impaired to the extent that a counterparty to a Hedging Transaction to whom Common Stock has been pledged has obtained the right to vote or sales or transfers of Registrable Class Securities in connection therewith under the Securities Act in a manner consistent with the rights and obligations of the Company hereunder take consensual action with respect to the registration Common Stock so pledged as a result of Registrable Securities. Any information an event of default or termination event with respect to the Liberty Stockholder Group under the Hedging Transaction; provided, further, that the terms of such pledging arrangement shall permit the Liberty Stockholder Group to exercise voting rights and to take consensual action with respect to the Common Stock so pledged in circumstances where no event of default or termination event has occurred;
(b) Liberty will use its reasonable efforts to ensure that it will not be deemed part of a Group with a counterparty to a Hedging Transaction; and
(c) a Hedging Transaction shall not be deemed to be a Block Sale; provided by that if the Holders regarding the settlement of a Hedging Transaction that is included in a Registration Statement, Prospectus or Free Writing Prospectus permitted pursuant to this Section 7(e) shall be deemed to be information provided by Agreement would otherwise qualify as a Block Sale, then upon the Holders selling Registrable Securities pursuant to such Registration Statement for purposes written request of Section 7(b).
(ii) All Registration Statements in which Holders may include Registrable Securities under this Agreement shall be subject Liberty delivered prior to the provisions settlement of this Section 7(e)such Hedging Transaction, and the registration of Registrable Class Securities thereunder such Transfer at settlement will be treated as a Block Sale pursuant to this Section 7(e) shall be subject to the provisions of this Agreement applicable to any such Registration Statements; provided, however, that the selection of any Hedging Counterparty shall not be subject to Section 3(g), but the Hedging Counterparty shall be selected by the Holders of a majority of the Registrable Class Securities subject to the Hedging Transaction that are proposed to be included in such Registration Statement.
(iii) If in connection with a Hedging Transaction, a Hedging Counterparty or any Affiliate thereof is (or may be considered) an underwriter or selling stockholder, then it shall be required to provide customary indemnities to the Company regarding the plan of distribution and like matters.
(iv) The Company further agrees to include, under the caption “Plan of Distribution” (or the equivalent caption), in each Registration Statement, and any related Prospectus (to the extent such inclusion is permitted under applicable Commission regulations and is consistent with comments received from the Commission during any Commission review of the Registration Statement), language substantially in the form of Schedule 1 hereto and to include in each Prospectus supplement filed in connection with any proposed Hedging Transaction language mutually agreed upon by the Company, the relevant Holders and the Hedging Counterparty describing such Hedging TransactionGovernance Agreement.
Appears in 6 contracts
Samples: Stockholders Agreement, Stockholders Agreement (Expedia, Inc.), Stockholders Agreement (Diller Barry)
Hedging Transactions. (a) No Borrower will, and will not permit any Subsidiary to, enter into any Swap Agreement with any Person other than:
(i) The Company agrees thatSwap Agreements with an Approved Counterparty in respect of commodities entered into not for speculative purposes the notional volumes for which (when aggregated with other commodity Swap Agreements then in effect other than basis differential swaps on volumes already hedged pursuant to other Swap Agreements) do not exceed, as of the date such Swap Agreement is entered into: ninety percent (90%) of the reasonably anticipated projected production from Proved Hydrocarbon Interests from Oil and Gas Properties constituting Proved Hydrocarbon Interests (as such production is projected in the most recent Reserve Report delivered pursuant to the terms of this Agreement) for each month during such period for each of crude oil, natural gas and natural gas liquids, calculated separately; provided, that (A) put option contracts or floors that are not related to corresponding calls, collars or swaps shall not be included in calculating such percentage threshold and (B) such Swap Agreements shall not, in connection with any proposed Hedging Transactioncase, ifhave a tenor of greater than four (4) years. It is understood that Swap Agreements in respect of commodities which may, in from time to time, “hedge” the reasonable judgment same volumes, but different elements of Holders’ Counselcommodity risk thereof, it is necessary or desirable to register under shall not be aggregated together when calculating the Securities Act such Hedging Transaction or sales or transfers (whether short or long) of Registrable Class Securities in connection therewith, then the Company shall use its reasonable best efforts to take such actions (which may include, among other things, the filing of a post-effective amendment to a Registration Statement to include additional or changed information that is material or is otherwise required to be disclosed, including a description of such Hedging Transaction, the name of the Hedging Counterparty, identification of the Hedging Counterparty or its Affiliates as underwriters or potential underwriters, if applicable, or any change to the plan of distribution) as may reasonably be required to register such Hedging Transaction or sales or transfers of Registrable Class Securities in connection therewith under the Securities Act in a manner consistent with the rights and obligations of the Company hereunder with respect to the registration of Registrable Securities. Any information provided by the Holders regarding the Hedging Transaction that is included in a Registration Statement, Prospectus or Free Writing Prospectus pursuant to this Section 7(e) shall be deemed to be information provided by the Holders selling Registrable Securities pursuant to such Registration Statement for purposes of Section 7(b).foregoing limitations on notional volumes; and
(ii) All Registration Statements Swap Agreements in respect of interest rates with an Approved Counterparty, which Holders may include Registrable Securities effectively convert interest rates from floating to fixed, the notional amounts of which (when aggregated with all other Swap Agreements of the Borrowers and their Subsidiaries then in effect effectively converting interest rates from floating to fixed) do not exceed 100% of the then outstanding principal amount of all Loans.
(b) In no event shall any Swap Agreement contain any requirement, agreement or covenant for any Borrower or any Subsidiary thereof to post collateral or margin to secure their obligations under this such Swap Agreement or to cover market exposures (other than under the Collateral Documents);
(c) Swap Agreements shall only be subject entered into in the ordinary course of business (and not for speculative purposes); and
(d) If, after the end of any calendar month, the aggregate volume of all Swap Agreements in respect of commodities for which settlement payments were calculated in such calendar month (other than puts, floors, and basis differential swaps on volumes hedged by other Swap Agreements) exceeded 100% of actual production of crude oil, natural gas and natural gas liquids, calculated separately, in such calendar month, then, to the provisions extent necessary, the Borrowers shall promptly (and in any event within 30 days of the end of such calendar month, which in such event, it shall not constitute a violation of this Section 7(e6.05(d)), and terminate, create off-setting positions, allocate volumes to other production the registration of Registrable Class Securities thereunder pursuant to this Section 7(e) shall be subject to the provisions of this Agreement applicable to any such Registration Statements; provided, however, that the selection of any Hedging Counterparty shall not be subject to Section 3(g), but the Hedging Counterparty shall be selected by the Holders of a majority of the Registrable Class Securities subject to the Hedging Transaction that are proposed to be included in such Registration Statement.
(iii) If in connection with a Hedging Transaction, a Hedging Counterparty Borrowers or any Affiliate thereof is (Subsidiaries are marketing, or may be considered) an underwriter or selling stockholderotherwise unwind existing Swap Agreements such that, then it shall be required to provide customary indemnities to at such time, future hedging volumes will not exceed 100% of reasonably anticipated projected production of crude oil, natural gas and natural gas liquids, calculated separately, for the Company regarding the plan of distribution and like matters.
(iv) The Company further agrees to include, under the caption “Plan of Distribution” (or the equivalent caption), in each Registration Statement, then-current and any related Prospectus (to the extent such inclusion is permitted under applicable Commission regulations and is consistent with comments received from the Commission during any Commission review of the Registration Statement), language substantially in the form of Schedule 1 hereto and to include in each Prospectus supplement filed in connection with any proposed Hedging Transaction language mutually agreed upon by the Company, the relevant Holders and the Hedging Counterparty describing such Hedging Transactionsucceeding calendar months.
Appears in 4 contracts
Samples: Credit Agreement (Unit Corp), Credit Agreement (Unit Corp), Credit Agreement (Unit Corp)
Hedging Transactions. (a) The provisions of this Agreement relating to the registration, offer and sale of Registrable Securities shall apply also to (i) The Company agrees thatany transaction which Transfers some or all of the economic risk of ownership of Registrable Securities, including any forward contract, equity swap, put or call, put or call equivalent position, collar, margin loan, sale of exchangeable security or similar transaction (including the registration, offer and sale under the Securities Act of Registrable Securities pledged to the counterparty to such transaction or of securities of the same class as the underlying Registrable Securities by the counterparty to such transaction in connection with therewith), and that the counterparty to such transaction shall be selected in the sole discretion of the Demand Shareholders and (ii) any proposed derivative transactions in which a broker-dealer, other financial institution or unaffiliated Person (each, a “Hedging Counterparty”) may sell Registrable Securities covered by any prospectus and the applicable prospectus supplement including short sale transactions using Registrable Securities pledged by a Demand Shareholder or borrowed from the Demand Shareholder or others and Registrable Securities loaned, pledged or hypothecated to any such party (each, a “Hedging Transaction, if, ”); provided that the Demand Shareholder’s legal counsel has determined in the its reasonable judgment (after good-faith consultation with counsel of Holders’ Counsel, the Company) that it is reasonably necessary or desirable to register under the Securities Act such Hedging Transaction or sales or transfers (whether short or long) of Registrable Class Securities in connection therewith, then the Company shall use its reasonable best efforts to take such actions (which may include, among other things, the filing of a post-effective amendment to a Registration Statement to include additional or changed information that is material or is otherwise required to be disclosed, including a description of such Hedging Transaction, the name of the Hedging Counterparty, identification of the Hedging Counterparty or its Affiliates as underwriters or potential underwriters, if applicable, or any change to the plan of distribution) as may reasonably be required to register such Hedging Transaction or sales or transfers of Registrable Class Securities in connection therewith under the Securities Act in a manner consistent with the rights and obligations of the Company hereunder with respect to the registration of Registrable Securities. Any written information provided by the Holders regarding the Hedging Transaction that is included provided to the Company by a Hedging Counterparty for inclusion in a Registration Statementany registration statement, Prospectus prospectus or Free Writing Prospectus free writing prospectus filed pursuant to this Section 7(e) shall 4.5 shall, for purposes of Section 4.9, be deemed to be written information provided by the Holders selling Registrable Securities pursuant to such Registration Statement a Selling Shareholder for purposes of Section 7(b)4.9; provided further that the term “Hedging Transaction” shall exclude any transactions in violation of Section 16 of the Exchange Act.
(ii) All Registration Statements in which Holders may include Registrable Securities under this Agreement shall be subject to the provisions of this Section 7(e), and the registration of Registrable Class Securities thereunder pursuant to this Section 7(e) shall be subject to the provisions of this Agreement applicable to any such Registration Statements; provided, however, that the selection of any Hedging Counterparty shall not be subject to Section 3(g), but the Hedging Counterparty shall be selected by the Holders of a majority of the Registrable Class Securities subject to the Hedging Transaction that are proposed to be included in such Registration Statement.
(iiib) If in connection with a Hedging Transaction, a Hedging Counterparty or any Affiliate thereof is (or may reasonably be considered) an underwriter or selling stockholder, then it such Hedging Counterparty shall be required to provide customary indemnities to the Company regarding the plan of distribution and like related matters.
(iv) The Company further agrees to include, under the caption “Plan of Distribution” (or the equivalent caption), in each Registration Statement, and any related Prospectus (to the extent such inclusion is permitted under applicable Commission regulations and is consistent with comments received from the Commission during any Commission review of the Registration Statement), language substantially in the form of Schedule 1 hereto and to include in each Prospectus supplement filed in connection with any proposed Hedging Transaction language mutually agreed upon by the Company, the relevant Holders and the Hedging Counterparty describing such Hedging Transaction.
Appears in 3 contracts
Samples: Stockholders Agreement (Air Transport Services Group, Inc.), Stockholders Agreement (Air Transport Services Group, Inc.), Stockholders Agreement (Air Transport Services Group, Inc.)
Hedging Transactions. (a) For so long as any APS are rated by Xxxxx'x, the Trust will not buy or sell financial futures contracts, write, purchase or sell call options on financial futures contracts or purchase put options on financial futures contracts or write call options (except covered call options) on portfolio securities unless it receives written confirmation from Moody's that engaging in such transactions would not impair the ratings then assigned to the APS by Moody's, except that the Trust may purchase or sell exchange-traded financial futures contracts based on the Municipal Index or Treasury Bonds, and purchase, write or sell exchange-traded put options on such financial futures contracts, the Municipal Index or Treasury Bonds, and purchase, write or sell exchange-traded call options on such financial futures contracts, the Municipal Index or Treasury Bonds (collectively "Moody's Hedging Transactions"), subject to the following limitations:
(i) the Trust will not engage in any Moody's Hedging Transaction based on the Municipal Index (other than transactions that terminate a futures contract or option held by the Trust by the Trust's taking the opposite position thereto ("Closing Transactions")) that would cause the Trust at the time of such transaction to own or have sold:
(A) outstanding financial futures contracts based on the Municipal Index exceeding in number 10% of the average number of daily traded financial futures contracts based on the Municipal Index in the 30 days preceding the time of effecting such transaction as reported by The Company agrees Wall Street Journal; or
(B) outstanding financial futures contracts based on the Municipal Index having a Market Value exceeding 50% of the Market Value of all Municipal Obligations constituting Moody's Eligible Assets owned by the Trust (other than Moody's Eligible Assets already subject to a Moody's Hedging Transaction);
(ii) the Trust will not engage in any Moody's Hedging Transaction based on Treasury Bonds (other than Closing Transactions) that would cause the Trust at the time of such transaction to own or have sold:
(A) outstanding financial futures contracts based on Treasury Bonds with such contracts having an aggregate Market Value exceeding 20% of the aggregate Market Value of Moody's Eligible Assets owned by the Trust and rated Aa by Moody's (or, if not rated by Moody's but rated by S & P, rated AAA by S & P); or
(B) outstanding financial futures contracts based on Treasury Bonds with such contracts having an aggregate Market Value exceeding 80% of the aggregate Market Value of all Municipal Obligations constituting Moody's Eligible Assets owned by the Trust (other than Moody's Eligible Assets already subject to a Moody's Hedging Transaction) and rated Baa or A by Moody's (or, if not rated by Moody's but rated by S & P, rated A or AA by S & P). (For purposes of the foregoing clauses (i) and (ii), the Trust shall be deemed to own the number of financial futures contracts that underlie any outstanding options written by the Trust);
(iii) the Trust will engage in Closing Transactions to close out any outstanding financial futures contract based on the Municipal Index if the amount of open interest in the Municipal Index as reported by The Wall Street Journal is less than 5,000;
(iv) the Trust will engage in a Closing Transaction to close out any outstanding financial futures contract by no later than the fifth Business Day of the month in which such contract expires and will engage in a Closing Transaction to close out any outstanding option on a financial futures contract by no later than the first Business Day of the month in which such option expires;
(v) the Trust will engage in Moody's Hedging Transactions only with respect to financial futures contracts or options thereon having the next settlement date or the settlement date immediately thereafter;
(vi) the Trust will not engage in options and futures transactions for leveraging or speculative purposes and will not write any call options or sell any financial futures contracts for the purpose of hedging the anticipated purchase of an asset prior to completion of such purchase; and
(vii) the Trust will not enter into an option or futures transaction unless, after giving effect thereto, the Trust would continue to have Moody's Eligible Assets with an aggregate Discounted Value equal to or greater than the APS Basic Maintenance Amount.
(b) For purposes of determining whether the Trust has Moody's Eligible Assets with an aggregate Discounted Value that equals or exceeds the APS Basic Maintenance Amount, the Discounted Value of Moody's Eligible Assets that the Trust is obligated to deliver or receive pursuant to an outstanding futures contract or option shall be as follows:
(i) assets subject to call options written by the Trust that are either exchange-traded and "readily reversible" or that expire within 49 days after the date as of which such valuation is made shall be valued at the lesser of (A) Discounted Value and (B) the exercise price of the call option written by the Trust;
(ii) assets subject to call options written by the Trust not meeting the requirements of clause (i) of this sentence shall have no value;
(iii) assets subject to put options written by the Trust shall be valued at the lesser of (A) the exercise price and (B) the Discounted Value of the assets subject to the option;
(iv) futures contracts shall be valued at the lesser of (A) settlement price and (B) the Discounted Value of the assets subject to the futures contract, provided that, in connection if a contract matures within 49 days after the date as of which such valuation is made, where the Trust is the seller the contract may be valued at the settlement price and where the Trust is the buyer the contract may be valued at the Discounted Value of the assets subject to the futures contract; and
(v) where delivery may be made to the Trust with any proposed security of a class of securities, the Trust shall assume that it will take delivery of the security with the lowest Discounted Value.
(c) For purposes of determining whether the Trust has Moody's Eligible Assets with an aggregate Discounted Value that equals or exceeds the APS Basic Maintenance Amount, the following amounts shall be subtracted from the aggregate Discounted Value of the Moody's Eligible Assets held by the Trust to the extent the relevant asset is a Moody's Eligible Asset:
(i) 10% of the exercise price of a written call option;
(ii) the exercise price of any written put option;
(iii) where the Trust is the seller under a financial futures contract, 10% of the settlement price of the financial futures contract;
(iv) where the Trust is the purchaser under a financial futures contract, any amounts payable by the Trust under such financial futures contract;
(v) the settlement price of the underlying financial futures contract if the Trust writes put options on a financial futures contract; and
(vi) 105% of the Market Value of the underlying financial futures contracts if the Trust writes call options on a financial futures contract and does not own the underlying contract.
(d) For so long as any APS are rated by Moody's, the Trust will not enter into any "Forward Commitment," herein defined as any contract to purchase securities for a fixed price at a future date beyond customary settlement time (other than such contracts that constitute Moody's Hedging TransactionTransactions), ifexcept that the Trust may enter into Forward Commitments subject to the following limitations:
(i) for each Forward Commitment, the Trust will maintain with its custodian (A) cash, cash equivalents or short-term, fixed-income securities rated X-0, XXX-0 xx XXXX-0 by Moody's or A-1 by S & P and maturing in one year or less with a fair market value that equals or exceeds the amount by which the Trust's obligations under any Forward Commitments to which it is from time to time a party exceed obligations to the Trust arising from securities sales by the Trust that are scheduled to settle at a future date, or (B) long-term, fixed-income securities with a then current market value that equals or exceeds the amount by which the Trust's obligations under any Forward Commitments to which it is from time to time a party exceed obligations to the Trust arising from securities sales by the Trust that are scheduled to settle on a future date, or (C) a combination of assets described in (A) and (B) above that in the reasonable judgment of Holders’ Counsel, aggregate equals or exceeds the amount by which the Trust's obligations under any Forward Commitments to which it is necessary from time to time a party exceed obligations to the Trust arising from securities sales by the Trust that are scheduled to settle on a future date; and
(ii) the Trust will not enter into a Forward Commitment unless, after giving effect thereto, the Trust would continue to have Moody's Eligible Assets with an aggregate Discounted Value equal to or desirable greater than the APS Basic Maintenance Amount. For purposes of determining whether the Trust has Moody's Eligible Assets with an aggregate Discounted Value that equals or exceeds the APS Basic Maintenance Amount, the Discounted Value of all Forward Commitments to register under which the Securities Act Trust is a party and of all securities deliverable to the Trust pursuant to such Hedging Transaction or sales or transfers Forward Commitments shall be zero.
(whether short or longe) For so long as APS are rated by Moody's, the Trust, unless it has received written confirmation from Moody's that such action would not impair the ratings then assigned to the APS by Moody's, will not:
(i) borrow money except for the purpose of Registrable Class Securities clearing transactions in connection therewith, then the Company shall use its reasonable best efforts to take such actions portfolio securities (which may include, among other things, borrowings under any circumstances shall be limited to an amount equal to 5% of the filing Market Value of a post-effective amendment to a Registration Statement to include additional the Trust's assets at the time of such borrowings and which borrowings shall be repaid within 60 days and not be extended or changed information that is material or is otherwise required renewed and shall not cause the aggregate Discounted Value of Moody's Eligible Assets to be disclosed, including less than the APS Basic Maintenance Amount);
(ii) engage in short sales of securities;
(iii) lend any securities;
(iv) issue any class or series of stock ranking prior to or on a description of such Hedging Transaction, the name of the Hedging Counterparty, identification of the Hedging Counterparty or its Affiliates as underwriters or potential underwriters, if applicable, or any change to the plan of distribution) as may reasonably be required to register such Hedging Transaction or sales or transfers of Registrable Class Securities in connection therewith under the Securities Act in a manner consistent parity with the rights and obligations of the Company hereunder APS with respect to the registration payment of Registrable Securities. Any information provided by dividends or the Holders regarding distribution of assets upon dissolution, liquidation or winding up of the Hedging Transaction that is included in a Registration Statement, Prospectus or Free Writing Prospectus pursuant to this Section 7(e) shall be deemed to be information provided by the Holders selling Registrable Securities pursuant to such Registration Statement for purposes of Section 7(b).Trust;
(iiv) All Registration Statements in which Holders may include Registrable Securities under this Agreement shall be subject to the provisions of this Section 7(e), and the registration of Registrable Class Securities thereunder pursuant to this Section 7(e) shall be subject to the provisions of this Agreement applicable to merge or consolidate into or with any such Registration Statementsother corporation or entity; provided, however, that the selection of any Hedging Counterparty shall not be subject to Section 3(g), but the Hedging Counterparty shall be selected by the Holders of a majority of the Registrable Class Securities subject to the Hedging Transaction that are proposed to be included in such Registration Statement.and
(iiivi) If in connection with a Hedging Transaction, a Hedging Counterparty or any Affiliate thereof is (or may be considered) an underwriter or selling stockholder, then it shall be required to provide customary indemnities to change the Company regarding the plan of distribution and like mattersTrust's Pricing Service.
(iv) The Company further agrees to include, under the caption “Plan of Distribution” (or the equivalent caption), in each Registration Statement, and any related Prospectus (to the extent such inclusion is permitted under applicable Commission regulations and is consistent with comments received from the Commission during any Commission review of the Registration Statement), language substantially in the form of Schedule 1 hereto and to include in each Prospectus supplement filed in connection with any proposed Hedging Transaction language mutually agreed upon by the Company, the relevant Holders and the Hedging Counterparty describing such Hedging Transaction.
Appears in 2 contracts
Samples: Bylaws (Pimco Municipal Income Fund), Bylaws (Pimco California Municipal Income Fund)
Hedging Transactions. Each of the Parent and the Borrower will not, and will not permit any Restricted Subsidiary to, enter into:
(a) any Swap Agreement in respect of commodities except for Swap Agreements with an Approved Counterparty the notional volumes for which (when aggregated with other commodity Swap Agreements then in effect other than basis differential swaps on volumes already hedged pursuant to other Swap Agreements) do not exceed, as of the date any such Swap Agreement is executed, the lesser of:
(i) The Company agrees that80% of the Parent’s, the Borrower’s and the Restricted Subsidiaries’ reasonably anticipated projected production of crude oil and condensate (with respect to crude oil and condensate related transactions) for each month in the period during which such Swap Agreement is in effect and 80% of the Parent’s, the Borrower’s and the Restricted Subsidiaries’ projected production of natural gas (with respect to natural gas related transactions) for each month in the period during which such Swap Agreement is in effect, in connection each case, from proved Hydrocarbon Interests as set forth on the most recent Reserve Report; and
(ii) 90% of the Parent’s, the Borrower’s and the Restricted Subsidiaries’ reasonably anticipated projected production of crude oil and condensate (with any proposed Hedging Transactionrespect to crude oil and condensate related transactions) for each month in the period during which such Swap Agreement is in effect and 90% of the Parent’s, ifthe Borrower’s and the Restricted Subsidiaries’ projected production of natural gas (with respect to natural gas related transactions) for each month in the period during which such Swap Agreement is in effect, in each case, from proved developed producing Hydrocarbon Interests as set forth on the reasonable judgment of Holders’ Counsel, it is necessary or desirable to register under the Securities Act such Hedging Transaction or sales or transfers most recent Reserve Report; or
(whether short or longb) of Registrable Class Securities in connection therewith, then the Company shall use its reasonable best efforts to take such actions (which may include, among other things, the filing of a post-effective amendment to a Registration Statement to include additional or changed information that is material or is otherwise required to be disclosed, including a description of such Hedging Transaction, the name of the Hedging Counterparty, identification of the Hedging Counterparty or its Affiliates as underwriters or potential underwriters, if applicable, or any change to the plan of distribution) as may reasonably be required to register such Hedging Transaction or sales or transfers of Registrable Class Securities in connection therewith under the Securities Act in a manner consistent with the rights and obligations of the Company hereunder Swap Agreement with respect to the registration interest rate on any Indebtedness except for Swap Agreements with one or more Approved Counterparties and provided that the aggregate notional principal amount of Registrable Securities. Any information provided by the Holders regarding the Hedging Transaction all Indebtedness that is included in a Registration Statement, Prospectus or Free Writing Prospectus pursuant to this Section 7(e) shall be deemed to be information provided by the Holders selling Registrable Securities pursuant to subject of all such Registration Statement Swap Agreements does not exceed the outstanding principal amount of Indebtedness for borrowed money. For purposes of Section 7(b).
clause (iia) All Registration Statements in which Holders may include Registrable Securities under this Agreement shall be subject to the provisions of this Section 7(e)6.05, forecasts of projected production shall equal the projections for proved Hydrocarbon Interests or proved developed producing Hydrocarbon Interests, as applicable, set out in the most recent Reserve Report as revised to account for any increase or decrease therein anticipated because of information obtained by the Parent and the registration of Registrable Class Securities thereunder pursuant to this Section 7(e) shall be subject Borrower subsequent to the provisions of this Agreement applicable to any such Registration Statements; provided, however, that the selection of any Hedging Counterparty shall not be subject to Section 3(g), but the Hedging Counterparty shall be selected by the Holders of a majority publication of the Registrable Class Securities subject most recent Reserve Report, including the Parent’s or Borrower’s internal forecasts of production decline rates for existing xxxxx and additions to the Hedging Transaction that are proposed or deletions from anticipated future production from new xxxxx and acquisitions coming on stream or failing to be included in such Registration Statementcome on stream.
(iii) If in connection with a Hedging Transaction, a Hedging Counterparty or any Affiliate thereof is (or may be considered) an underwriter or selling stockholder, then it shall be required to provide customary indemnities to the Company regarding the plan of distribution and like matters.
(iv) The Company further agrees to include, under the caption “Plan of Distribution” (or the equivalent caption), in each Registration Statement, and any related Prospectus (to the extent such inclusion is permitted under applicable Commission regulations and is consistent with comments received from the Commission during any Commission review of the Registration Statement), language substantially in the form of Schedule 1 hereto and to include in each Prospectus supplement filed in connection with any proposed Hedging Transaction language mutually agreed upon by the Company, the relevant Holders and the Hedging Counterparty describing such Hedging Transaction.
Appears in 2 contracts
Samples: Credit Agreement (Penn Virginia Corp), Credit Agreement (Penn Virginia Corp)
Hedging Transactions. (a) For so long as any APS are rated by Xxxxx’x, the Trust will not buy or sell financial futures contracts, write, purchase or sell call options on financial futures contracts or purchase put options on financial futures contracts or write call options (except covered call options) on portfolio securities unless it receives written confirmation from Moody’s that engaging in such transactions would not impair the ratings then assigned to the APS by Moody’s, except that the Trust may purchase or sell exchange-traded financial futures contracts based on the Municipal Index or Treasury Bonds, and purchase, write or sell exchange-traded put options on such financial futures contracts, the Municipal Index or Treasury Bonds, and purchase, write or sell exchange-traded call options on such financial futures contracts, the Municipal Index or Treasury Bonds (collectively “Moody’s Hedging Transactions”), subject to the following limitations:
(i) the Trust will not engage in any Moody’s Hedging Transaction based on the Municipal Index (other than transactions that terminate a futures contract or option held by the Trust by the Trust’s taking the opposite position thereto (“Closing Transactions”)) that would cause the Trust at the time of such transaction to own or have sold:
(A) outstanding financial futures contracts based on the Municipal Index exceeding in number 10% of the average number of daily traded financial futures contracts based on the Municipal Index in the 30 days preceding the time of effecting such transaction as reported by The Company agrees Wall Street Journal; or
(B) outstanding financial futures contracts based on the Municipal Index having a Market Value exceeding 50% of the Market Value of all Municipal Obligations constituting Moody’s Eligible Assets owned by the Trust (other than Moody’s Eligible Assets already subject to a Moody’s Hedging Transaction);
(ii) the Trust will not engage in any Moody’s Hedging Transaction based on Treasury Bonds (other than Closing Transactions) that would cause the Trust at the time of such transaction to own or have sold:
(A) outstanding financial futures contracts based on Treasury Bonds with such contracts having an aggregate Market Value exceeding 20% of the aggregate Market Value of Moody’s Eligible Assets owned by the Trust and rated Aa by Moody’s (or, if not rated by Moody’s but rated by S&P, rated AAA by S&P); or
(B) outstanding financial futures contracts based on Treasury Bonds with such contracts having an aggregate Market Value exceeding 80% of the aggregate Market Value of all Municipal Obligations constituting Moody’s Eligible Assets owned by the Trust (other than Moody’s Eligible Assets already subject to a Moody’s Hedging Transaction) and rated Baa or A by Moody’s (or, if not rated by Moody’s but rated by S&P, rated A or AA by S&P). (For purposes of the foregoing clauses (i) and (ii), the Trust shall be deemed to own the number of financial futures contracts that underlie any outstanding options written by the Trust);
(iii) the Trust will engage in Closing Transactions to close out any outstanding financial futures contract based on the Municipal Index if the amount of open interest in the Municipal Index as reported by The Wall Street Journal is less than 5,000;
(iv) the Trust will engage in a Closing Transaction to close out any outstanding financial futures contract by no later than the fifth Business Day of the month in which such contract expires and will engage in a Closing Transaction to close out any outstanding option on a financial futures contract by no later than the first Business Day of the month in which such option expires;
(v) the Trust will engage in Moody’s Hedging Transactions only with respect to financial futures contracts or options thereon having the next settlement date or the settlement date immediately thereafter;
(vi) the Trust will not engage in options and futures transactions for leveraging or speculative purposes and will not write any call options or sell any financial futures contracts for the purpose of hedging the anticipated purchase of an asset prior to completion of such purchase; and
(vii) the Trust will not enter into an option or futures transaction unless, after giving effect thereto, the Trust would continue to have Moody’s Eligible Assets with an aggregate Discounted Value equal to or greater than the APS Basic Maintenance Amount.
(b) For purposes of determining whether the Trust has Moody’s Eligible Assets with an aggregate Discounted Value that equals or exceeds the APS Basic Maintenance Amount, the Discounted Value of Moody’s Eligible Assets that the Trust is obligated to deliver or receive pursuant to an outstanding futures contract or option shall be as follows:
(i) assets subject to call options written by the Trust that are either exchange-traded and “readily reversible” or that expire within 49 days after the date as of which such valuation is made shall be valued at the lesser of (A) Discounted Value and (B) the exercise price of the call option written by the Trust;
(ii) assets subject to call options written by the Trust not meeting the requirements of clause (i) of this sentence shall have no value;
(iii) assets subject to put options written by the Trust shall be valued at the lesser of (A) the exercise price and (B) the Discounted Value of the assets subject to the option;
(iv) futures contracts shall be valued at the lesser of (A) settlement price and (B) the Discounted Value of the assets subject to the futures contract, provided that, in connection if a contract matures within 49 days after the date as of which such valuation is made, where the Trust is the seller the contract may be valued at the settlement price and where the Trust is the buyer the contract may be valued at the Discounted Value of the assets subject to the futures contract; and
(v) where delivery may be made to the Trust with any proposed security of a class of securities, the Trust shall assume that it will take delivery of the security with the lowest Discounted Value.
(c) For purposes of determining whether the Trust has Moody’s Eligible Assets with an aggregate Discounted Value that equals or exceeds the APS Basic Maintenance Amount, the following amounts shall be subtracted from the aggregate Discounted Value of the Moody’s Eligible Assets held by the Trust to the extent the relevant asset is a Moody’s Eligible Asset:
(i) 10% of the exercise price of a written call option;
(ii) the exercise price of any written put option;
(iii) where the Trust is the seller under a financial futures contract, 10% of the settlement price of the financial futures contract;
(iv) where the Trust is the purchaser under a financial futures contract, any amounts payable by the Trust under such financial futures contract;
(v) the settlement price of the underlying financial futures contract if the Trust writes put options on a financial futures contract; and
(vi) 105% of the Market Value of the underlying financial futures contracts if the Trust writes call options on a financial futures contract and does not own the underlying contract.
(d) For so long as any APS are rated by Moody’s, the Trust will not enter into any “Forward Commitment,” herein defined as any contract to purchase securities for a fixed price at a future date beyond customary settlement time (other than such contracts that constitute Moody’s Hedging TransactionTransactions), ifexcept that the Trust may enter into Forward Commitments subject to the following limitations:
(i) for each Forward Commitment, the Trust will maintain with its custodian (A) cash, cash equivalents or short-term, fixed-income securities rated X-0, XXX-0 xx XXXX-0 by Moody’s or A-1 by S&P and maturing in one year or less with a fair market value that equals or exceeds the amount by which the Trust’s obligations under any Forward Commitments to which it is from time to time a party exceed obligations to the Trust arising from securities sales by the Trust that are scheduled to settle at a future date, or (B) long-term, fixed-income securities with a then current market value that equals or exceeds the amount by which the Trust’s obligations under any Forward Commitments to which it is from time to time a party exceed obligations to the Trust arising from securities sales by the Trust that are scheduled to settle on a future date, or (C) a combination of assets described in (A) and (B) above that in the reasonable judgment of Holders’ Counsel, aggregate equals or exceeds the amount by which the Trust’s obligations under any Forward Commitments to which it is necessary from time to time a party exceed obligations to the Trust arising from securities sales by the Trust that are scheduled to settle on a future date; and
(ii) the Trust will not enter into a Forward Commitment unless, after giving effect thereto, the Trust would continue to have Moody’s Eligible Assets with an aggregate Discounted Value equal to or desirable greater than the APS Basic Maintenance Amount. For purposes of determining whether the Trust has Moody’s Eligible Assets with an aggregate Discounted Value that equals or exceeds the APS Basic Maintenance Amount, the Discounted Value of all Forward Commitments to register under which the Securities Act Trust is a party and of all securities deliverable to the Trust pursuant to such Hedging Transaction or sales or transfers Forward Commitments shall be zero.
(whether short or longe) For so long as APS are rated by Moody’s, the Trust, unless it has received written confirmation from Moody’s that such action would not impair the ratings then assigned to the APS by Moody’s, will not:
(i) borrow money except for the purpose of Registrable Class Securities clearing transactions in connection therewith, then the Company shall use its reasonable best efforts to take such actions portfolio securities (which may include, among other things, borrowings under any circumstances shall be limited to an amount equal to 5% of the filing Market Value of a post-effective amendment to a Registration Statement to include additional the Trust’s assets at the time of such borrowings and which borrowings shall be repaid within 60 days and not be extended or changed information that is material or is otherwise required renewed and shall not cause the aggregate Discounted Value of Moody’s Eligible Assets to be disclosed, including less than the APS Basic Maintenance Amount);
(ii) engage in short sales of securities;
(iii) lend any securities;
(iv) issue any class or series of stock ranking prior to or on a description of such Hedging Transaction, the name of the Hedging Counterparty, identification of the Hedging Counterparty or its Affiliates as underwriters or potential underwriters, if applicable, or any change to the plan of distribution) as may reasonably be required to register such Hedging Transaction or sales or transfers of Registrable Class Securities in connection therewith under the Securities Act in a manner consistent parity with the rights and obligations of the Company hereunder APS with respect to the registration payment of Registrable Securities. Any information provided by dividends or the Holders regarding distribution of assets upon dissolution, liquidation or winding up of the Hedging Transaction that is included in a Registration Statement, Prospectus or Free Writing Prospectus pursuant to this Section 7(e) shall be deemed to be information provided by the Holders selling Registrable Securities pursuant to such Registration Statement for purposes of Section 7(b).Trust;
(iiv) All Registration Statements in which Holders may include Registrable Securities under this Agreement shall be subject to the provisions of this Section 7(e), and the registration of Registrable Class Securities thereunder pursuant to this Section 7(e) shall be subject to the provisions of this Agreement applicable to merge or consolidate into or with any such Registration Statementsother corporation or entity; provided, however, that the selection of any Hedging Counterparty shall not be subject to Section 3(g), but the Hedging Counterparty shall be selected by the Holders of a majority of the Registrable Class Securities subject to the Hedging Transaction that are proposed to be included in such Registration Statement.and
(iiivi) If in connection with a Hedging Transaction, a Hedging Counterparty or any Affiliate thereof is (or may be considered) an underwriter or selling stockholder, then it shall be required to provide customary indemnities to change the Company regarding the plan of distribution and like mattersTrust’s Pricing Service.
(iv) The Company further agrees to include, under the caption “Plan of Distribution” (or the equivalent caption), in each Registration Statement, and any related Prospectus (to the extent such inclusion is permitted under applicable Commission regulations and is consistent with comments received from the Commission during any Commission review of the Registration Statement), language substantially in the form of Schedule 1 hereto and to include in each Prospectus supplement filed in connection with any proposed Hedging Transaction language mutually agreed upon by the Company, the relevant Holders and the Hedging Counterparty describing such Hedging Transaction.
Appears in 2 contracts
Samples: Bylaws (Pimco Municipal Income Fund), Bylaws (Pimco California Municipal Income Fund)
Hedging Transactions. (i) The Company agrees that, in connection with any proposed Hedging Transaction, if, in the reasonable judgment of Holders’ Counsel, it is necessary or desirable to register under the Securities Act such Hedging Transaction or sales or transfers (whether short or long) of Registrable Class Securities in connection therewith, then the Company Seller shall use its reasonable best efforts to take such actions enter into, on behalf of and in consultation with Buyer, certain assignable hedging transactions covering production from the Properties as described herein. Upon execution of this Agreement, representatives from each of Seller and Buyer shall jointly obtain quotations from at least two (which may include, among other things, 2) counterparties chosen by Buyer from the filing parties with whom Seller has current ISDA agreements for straight swaps for quantities of a post-effective amendment the future proved developed producing oil and gas reserves attributable to a Registration Statement to include additional or changed information that is material or is otherwise required the Assets and for reasonable terms to be disclosed, including a description provided by Buyer at the time of such Hedging Transaction, the name execution of the Hedging CounterpartyTransactions. Upon receipt of oral instructions from the Buyer directing Seller which swaps to enter into and with which counterparty, identification subject to the indemnities set forth herein, Seller shall use its reasonable efforts to execute, on behalf of and for the benefit and liability of Buyers, such transactions with the counterparty providing the terms acceptable to the Buyers as set forth in such instructions (the “Hedging Transactions”). Immediately thereafter, Buyers will provide written confirmation to Seller confirming Buyers’ oral instructions. At Closing, or as soon thereafter as practicable, all such hedging arrangements shall be transferred to or novated in favor of Buyers. Whether the Closing occurs or not, Buyers shall pay, be responsible for and indemnify and hold Seller harmless from and against any and all costs, expenses and other liabilities arising from or attributable to the Hedging Counterparty Transactions. In any event, Seller will liquidate or its Affiliates novated in favor of Buyer (as underwriters or potential underwriters, if applicable, or any change to the plan of distributionBuyer’s election) as may reasonably be required to register such Hedging Transaction or sales or transfers of Registrable Class Securities in connection therewith under the Securities Act in a manner consistent with the rights and obligations of the Company hereunder with respect to the registration of Registrable Securities. Any information provided by the Holders regarding the Hedging Transaction that is included in a Registration Statementno later than March 31, Prospectus 2010. In the event the closing of the transaction contemplated herein has not occurred on or Free Writing Prospectus pursuant to this Section 7(e) shall be deemed to be information provided by the Holders selling Registrable Securities pursuant to such Registration Statement for purposes of Section 7(b).
(ii) All Registration Statements in which Holders may include Registrable Securities under before March 31, 2010 or this Agreement shall be subject is terminated for any reason prior to the provisions of this Section 7(e), and the registration of Registrable Class Securities thereunder pursuant to this Section 7(e) shall be subject to the provisions of this Agreement applicable to any such Registration Statements; provided, however, that the selection of any Hedging Counterparty shall not be subject to Section 3(g), but the Hedging Counterparty shall be selected by the Holders of a majority closing of the Registrable Class Securities subject transactions contemplated herein, Buyers shall indemnify and hold Seller harmless from and against any and all losses, costs, expenses or other liabilities arising from or related to the Hedging Transaction that are proposed to be included Transactions within in such Registration Statementten (10) days after receipt of invoice with respect thereto.
(iii) If in connection with a Hedging Transaction, a Hedging Counterparty or any Affiliate thereof is (or may be considered) an underwriter or selling stockholder, then it shall be required to provide customary indemnities to the Company regarding the plan of distribution and like matters.
(iv) The Company further agrees to include, under the caption “Plan of Distribution” (or the equivalent caption), in each Registration Statement, and any related Prospectus (to the extent such inclusion is permitted under applicable Commission regulations and is consistent with comments received from the Commission during any Commission review of the Registration Statement), language substantially in the form of Schedule 1 hereto and to include in each Prospectus supplement filed in connection with any proposed Hedging Transaction language mutually agreed upon by the Company, the relevant Holders and the Hedging Counterparty describing such Hedging Transaction.
Appears in 1 contract
Samples: Purchase and Sale Agreement (EV Energy Partners, LP)
Hedging Transactions. (i) The Company agrees that, in connection with any proposed Hedging Transaction, if, in the reasonable judgment of Holders’ Counsel, it is necessary or desirable to register under the Securities Act such Hedging Transaction or sales or transfers (whether short or long) of Registrable Class Securities in connection therewith, then the Company Seller shall use its reasonable best efforts to take such actions enter into, on behalf of and in consultation with Xxxxx, certain assignable hedging transactions covering production from the Properties as described herein. Upon execution of this Agreement, representatives from each of Seller and Xxxxx shall jointly obtain quotations from at least two (which may include, among other things, 2) counterparties chosen by Xxxxx from the filing parties with whom Seller has current ISDA agreements for straight swaps for quantities of a post-effective amendment the future proved developed producing oil and gas reserves attributable to a Registration Statement to include additional or changed information that is material or is otherwise required the Assets and for reasonable terms to be disclosed, including a description provided by Buyer at the time of such Hedging Transaction, the name execution of the Hedging CounterpartyTransactions. Upon receipt of oral instructions from the Buyer directing Seller which swaps to enter into and with which counterparty, identification subject to the indemnities set forth herein, Seller shall use its reasonable efforts to execute, on behalf of and for the benefit and liability of Buyers, such transactions with the counterparty providing the terms acceptable to the Buyers as set forth in such instructions (the “Hedging Transactions”). Immediately thereafter, Xxxxxx will provide written confirmation to Seller confirming Buyers’ oral instructions. At Closing, or as soon thereafter as practicable, all such hedging arrangements shall be transferred to or novated in favor of Xxxxxx. Whether the Closing occurs or not, Buyers shall pay, be responsible for and indemnify and hold Seller harmless from and against any and all costs, expenses and other liabilities arising from or attributable to the Hedging Counterparty Transactions. In any event, Seller will liquidate or its Affiliates novated in favor of Xxxxx (as underwriters or potential underwriters, if applicable, or any change to the plan of distributionXxxxx’s election) as may reasonably be required to register such Hedging Transaction or sales or transfers of Registrable Class Securities in connection therewith under the Securities Act in a manner consistent with the rights and obligations of the Company hereunder with respect to the registration of Registrable Securities. Any information provided by the Holders regarding the Hedging Transaction that is included in a Registration Statementno later than March 31, Prospectus 2010. In the event the closing of the transaction contemplated herein has not occurred on or Free Writing Prospectus pursuant to this Section 7(e) shall be deemed to be information provided by the Holders selling Registrable Securities pursuant to such Registration Statement for purposes of Section 7(b).
(ii) All Registration Statements in which Holders may include Registrable Securities under before March 31, 2010 or this Agreement shall be subject is terminated for any reason prior to the provisions of this Section 7(e), and the registration of Registrable Class Securities thereunder pursuant to this Section 7(e) shall be subject to the provisions of this Agreement applicable to any such Registration Statements; provided, however, that the selection of any Hedging Counterparty shall not be subject to Section 3(g), but the Hedging Counterparty shall be selected by the Holders of a majority closing of the Registrable Class Securities subject transactions contemplated herein, Buyers shall indemnify and hold Seller harmless from and against any and all losses, costs, expenses or other liabilities arising from or related to the Hedging Transaction that are proposed to be included Transactions within in such Registration Statementten (10) days after receipt of invoice with respect thereto.
(iii) If in connection with a Hedging Transaction, a Hedging Counterparty or any Affiliate thereof is (or may be considered) an underwriter or selling stockholder, then it shall be required to provide customary indemnities to the Company regarding the plan of distribution and like matters.
(iv) The Company further agrees to include, under the caption “Plan of Distribution” (or the equivalent caption), in each Registration Statement, and any related Prospectus (to the extent such inclusion is permitted under applicable Commission regulations and is consistent with comments received from the Commission during any Commission review of the Registration Statement), language substantially in the form of Schedule 1 hereto and to include in each Prospectus supplement filed in connection with any proposed Hedging Transaction language mutually agreed upon by the Company, the relevant Holders and the Hedging Counterparty describing such Hedging Transaction.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Hedging Transactions. (a) The provisions of this Agreement relating to the registration, offer, and sale of Registrable Securities shall apply also to (i) The Company agrees thatany transaction which Transfers some or all of the economic risk of ownership of Registrable Securities, including any forward contract, equity swap, put or call, put- or call-equivalent position, collar, margin loan, sale of exchangeable security, or similar transaction (including the registration, offer, and sale under the Securities Act of Registrable Securities pledged to the counterparty to such transaction or of securities of the same class as the underlying Registrable Securities by the counterparty to such transaction in connection with therewith), and that the counterparty to such transaction shall be selected in the sole discretion of the applicable Holder(s) and (ii) any proposed derivative transactions in which a broker-dealer, other financial institution, or unaffiliated Person (each, a “Hedging Counterparty”) may sell Registrable Securities covered by any prospectus and the applicable prospectus supplement including (subject to Section 2.5(b) below) short sale transactions using Registrable Securities pledged by a Holder or borrowed from the Holder or others and Registrable Securities loaned, pledged, or hypothecated to any such party (each, a “Hedging Transaction, if, ”); provided that the Holder’s legal counsel has determined in the its reasonable judgment (after good faith consultation with counsel of Holders’ Counsel, the Company) that it is reasonably necessary or desirable to register under the Securities Act such Hedging Transaction or sales or transfers (whether short or long) of Registrable Class Securities in connection therewith, then the Company shall use its reasonable best efforts to take such actions (which may include, among other things, the filing of a post-effective amendment to a Registration Statement to include additional or changed information that is material or is otherwise required to be disclosed, including a description of such Hedging Transaction, the name of the Hedging Counterparty, identification of the Hedging Counterparty or its Affiliates as underwriters or potential underwriters, if applicable, or any change to the plan of distribution) as may reasonably be required to register such Hedging Transaction or sales or transfers of Registrable Class Securities in connection therewith under the Securities Act in a manner consistent with the rights and obligations of the Company hereunder with respect to the registration of Registrable Securities. Any written information provided by the Holders regarding the Hedging Transaction that is included provided to the Company by a Hedging Counterparty for inclusion in a Registration Statementany registration statement, Prospectus prospectus, or Free Writing Prospectus free writing prospectus filed pursuant to this Sections 2.1 and 2.2 shall, for purposes of Section 7(e) shall 5.1(b), be deemed to be written information provided by the Holders selling Registrable Securities pursuant to such Registration Statement a Selling Shareholder for purposes of Section 7(b5.1(b).
(ii) All Registration Statements in which Holders may include Registrable Securities under this Agreement shall be subject to the provisions of this Section 7(e), and the registration of Registrable Class Securities thereunder pursuant to this Section 7(e) shall be subject to the provisions of this Agreement applicable to any such Registration Statements; provided, however, that the selection of any Hedging Counterparty shall not be subject to Section 3(g), but the Hedging Counterparty shall be selected by the Holders of a majority of the Registrable Class Securities subject to the Hedging Transaction that are proposed to be included in such Registration Statement.
(iiib) If in connection with a Hedging Transaction, a Hedging Counterparty or any Affiliate thereof is (or may reasonably be considered) an underwriter or selling stockholdershareholder, then it the applicable Holder shall be required to provide provide, or cause such Hedging Counterparty or such Affiliate thereof to provide, customary indemnities to the Company regarding the plan of distribution and like related matters.
(ivc) The Company further agrees to include, under the caption “Plan Notwithstanding any other provision of Distribution” (or the equivalent caption)this Section 2.5, in each Registration Statement, and no event shall Stonepeak or any related Prospectus (of its Affiliates “loan” any Registrable Securities to the extent such inclusion is permitted under applicable Commission regulations and is consistent with comments received from the Commission during any Commission review “short sellers” of the Registration Statement)Company’s securities or, language substantially in without the form prior written consent of Schedule 1 hereto and to include in each Prospectus supplement filed in connection with any proposed Hedging Transaction language mutually agreed upon by the Company, Transfer any Registrable Securities to any Excluded Transferee.
(d) For avoidance of doubt, the relevant Holders clarifications provided in this Section 2.5 to the effect that Hedging Transactions are among the types of transactions covered by the provisions of this Agreement relating to the registration, offer, and sale of Registrable Securities shall in no manner be read to imply that any other particular types of transactions, by virtue of not having a similar clarifying provision in this Agreement, are not among the Hedging Counterparty describing such Hedging Transactiontypes of transactions covered by the provisions of this Agreement relating to the registration, offer, and sale of Registrable Securities.
Appears in 1 contract
Samples: Registration Rights Agreement (Clean Energy Fuels Corp.)
Hedging Transactions. (i) The Company Lender agrees that, in connection with that as long as it or any proposed Hedging Transaction, if, in the reasonable judgment of Holders’ Counsel, it is necessary or desirable to register under the Securities Act such Hedging Transaction or sales or transfers (whether short or long) of Registrable Class Securities in connection therewith, then the Company shall use its reasonable best efforts to take such actions (which may include, among other things, the filing of a post-effective amendment to a Registration Statement to include additional or changed information that is material or is otherwise required to be disclosed, including a description of such Hedging Transaction, the name of the Hedging Counterparty, identification of the Hedging Counterparty or its Affiliates as underwriters or potential underwritersholds any Securities it shall not, if applicableand Lender shall cause it Affiliates not to, hold any short sale position or any change to the plan of distribution) as may reasonably be required to register such Hedging Transaction or sales or transfers of Registrable Class Securities in connection therewith under the Securities Act in a manner consistent with the rights and obligations of the Company hereunder hedging position with respect to the registration any Company Securities in excess of Registrable Securities. Any information $25,000; provided by the Holders regarding the Hedging Transaction that is included in a Registration Statement, Prospectus or Free Writing Prospectus pursuant to this Section 7(e) shall be deemed to be information provided by the Holders selling Registrable Securities pursuant to such Registration Statement for purposes of Section 7(b).
(ii) All Registration Statements in which Holders may include Registrable Securities under this Agreement shall be subject to the provisions of this Section 7(e), and the registration of Registrable Class Securities thereunder pursuant to this Section 7(e) shall be subject to the provisions of this Agreement applicable to any such Registration Statements; provided, however, that the selection of any Hedging Counterparty shall not short sale or hedging transaction may only be subject to Section 3(g), but the Hedging Counterparty shall be selected by the Holders of a majority of the Registrable Class Securities subject to the Hedging Transaction that are proposed to be included in such Registration Statement.
(iii) If made in connection with a Hedging Transaction, a Hedging Counterparty conversion under the Debenture or any Affiliate thereof is (or may be considered) an underwriter or selling stockholder, then exercise of the Warrants. Lender agrees that it shall not transfer any Securities unless the transferee thereof explicitly agrees in writing to be required to provide customary indemnities to bound by the Company regarding the plan of distribution and like matters.
(iv) The Company further agrees to includeterms hereof, under the caption “Plan of Distribution” (or the equivalent caption), in each Registration Statement, and any related Prospectus (to the extent such inclusion is permitted under applicable Commission regulations and is consistent with comments received from the Commission during any Commission review of the Registration Statement), language substantially in the form of Schedule 1 hereto and to include in each Prospectus supplement filed except in connection with transfers of Shares that are not Registrable Securities. The Company agrees that unless and until (i) the Company has affirmatively demonstrated by the use of specific clear and convincing evidence that the Lender has traded in securities of the Company in violation of applicable federal securities laws and (ii) there has been issued against the Lender a final non-appealable decision from a court of competent jurisdiction to the effect that the Lender has violated applicable federal securities laws with respect to its trading of the Company's securities, the Lender shall be assumed to be in compliance with such laws and the Company shall remain obligated to fulfill all of its obligations under each of the Transaction Agreements; provided, further, that the Company shall under no circumstances be entitled to request or demand that the Lender affirmatively demonstrate that it has not engaged in any proposed Hedging such violations as a condition to the Company's fulfillment of its obligations under any of the Transaction language mutually agreed upon by Agreements and shall not assert, whether as an affirmative claim or a defense to any claim made against the Company, that the relevant Holders and Lender's failure to demonstrate such absence of such violations (including, but not limited to, its failure to provide any trading or other records, it being specifically agreed that the Hedging Counterparty describing Company, directly or indirectly, will request the Lender or any of its agents, advisors, brokers or representatives to provide such Hedging Transactionrecords in any forum) serves either as a defense to any breach of the Company's obligations under any of the Transaction Agreements or otherwise reflects adversely in any manner on the legality of any action taken by the Lender.
Appears in 1 contract
Samples: Securities Purchase Agreement (Advanced Technology Industries Inc)
Hedging Transactions. (a) The provisions of this Agreement relating to the registration, offer and sale of Registrable Securities shall apply also to (i) The Company agrees thatany transaction which Transfers some or all of the economic risk of ownership of Registrable Securities, including any forward contract, equity swap, put or call, put or call equivalent position, collar, margin loan, sale of exchangeable security or similar transaction (including the registration, offer and sale SV:315627.6 1001640689v15 under the Securities Act of Registrable Securities pledged to the counterparty to such transaction or of securities of the same class as the underlying Registrable Securities by the counterparty to such transaction in connection with therewith), and that the counterparty to such transaction shall be selected in the sole discretion of the Demand Shareholders and (ii) any proposed derivative transactions in which a broker-dealer, other financial institution or unaffiliated Person (each, a “Hedging Counterparty”) may sell Registrable Securities covered by any prospectus and the applicable prospectus supplement including short sale transactions using Registrable Securities pledged by a Demand Shareholder or borrowed from the Demand Shareholder or others and Registrable Securities loaned, pledged or hypothecated to any such party (each, a “Hedging Transaction, if, ”); provided that the Demand Shareholder’s legal counsel has determined in the its reasonable judgment (after good-faith consultation with counsel of Holders’ Counsel, the Company) that it is reasonably necessary or desirable to register under the Securities Act such Hedging Transaction or sales or transfers (whether short or long) of Registrable Class Securities in connection therewith, then the Company shall use its reasonable best efforts to take such actions (which may include, among other things, the filing of a post-effective amendment to a Registration Statement to include additional or changed information that is material or is otherwise required to be disclosed, including a description of such Hedging Transaction, the name of the Hedging Counterparty, identification of the Hedging Counterparty or its Affiliates as underwriters or potential underwriters, if applicable, or any change to the plan of distribution) as may reasonably be required to register such Hedging Transaction or sales or transfers of Registrable Class Securities in connection therewith under the Securities Act in a manner consistent with the rights and obligations of the Company hereunder with respect to the registration of Registrable Securities. Any written information provided by the Holders regarding the Hedging Transaction that is included provided to the Company by a Hedging Counterparty for inclusion in a Registration Statementany registration statement, Prospectus prospectus or Free Writing Prospectus free writing prospectus filed pursuant to this Section 7(e) shall 4.5 shall, for purposes of Section 4.9, be deemed to be written information provided by the Holders selling Registrable Securities pursuant to such Registration Statement a Selling Shareholder for purposes of Section 7(b)4.9; provided further that the term “Hedging Transaction” shall exclude any transactions in violation of Section 16 of the Exchange Act.
(ii) All Registration Statements in which Holders may include Registrable Securities under this Agreement shall be subject to the provisions of this Section 7(e), and the registration of Registrable Class Securities thereunder pursuant to this Section 7(e) shall be subject to the provisions of this Agreement applicable to any such Registration Statements; provided, however, that the selection of any Hedging Counterparty shall not be subject to Section 3(g), but the Hedging Counterparty shall be selected by the Holders of a majority of the Registrable Class Securities subject to the Hedging Transaction that are proposed to be included in such Registration Statement.
(iiib) If in connection with a Hedging Transaction, a Hedging Counterparty or any Affiliate thereof is (or may reasonably be considered) an underwriter or selling stockholder, then it such Hedging Counterparty shall be required to provide customary indemnities to the Company regarding the plan of distribution and like related matters.
(iv) The Company further agrees to include, under the caption “Plan of Distribution” (or the equivalent caption), in each Registration Statement, and any related Prospectus (to the extent such inclusion is permitted under applicable Commission regulations and is consistent with comments received from the Commission during any Commission review of the Registration Statement), language substantially in the form of Schedule 1 hereto and to include in each Prospectus supplement filed in connection with any proposed Hedging Transaction language mutually agreed upon by the Company, the relevant Holders and the Hedging Counterparty describing such Hedging Transaction.
Appears in 1 contract
Samples: Stockholders Agreement (Air Transport Services Group, Inc.)
Hedging Transactions. (a) The provisions of this Agreement relating to the registration, offer, and sale of Registrable Securities shall apply also to (i) The Company agrees thatany transaction which Transfers some or all of the economic risk of ownership of Registrable Securities, including any forward contract, equity swap, put or call, put- or call-equivalent position, collar, margin loan, sale of exchangeable security, or similar transaction (including the registration, offer, and sale under the Securities Act of Registrable Securities pledged to the counterparty to such transaction or of securities of the same class as the underlying Registrable Securities by the counterparty to such transaction in connection with therewith), and that the counterparty to such transaction shall be selected in the sole discretion of the Demand Shareholders and (ii) any proposed derivative transactions in which a broker-dealer, other financial institution, or unaffiliated Person (each, a “Hedging Counterparty”) may sell Registrable Securities covered by any prospectus and the applicable prospectus supplement including short sale transactions using Registrable Securities pledged by a Demand Shareholder or borrowed from the Demand Shareholder or others and Registrable Securities loaned, pledged, or hypothecated to any such party (each, a “Hedging Transaction, if, ”); provided that the Demand Shareholder’s legal counsel has determined in the its reasonable judgment (after good faith consultation with counsel of Holders’ Counsel, the Company) that it is reasonably necessary or desirable to register under the Securities Act such Hedging Transaction or sales or transfers (whether short or long) of Registrable Class Securities in connection therewith, then the Company shall use its reasonable best efforts to take such actions (which may include, among other things, the filing of a post-effective amendment to a Registration Statement to include additional or changed information that is material or is otherwise required to be disclosed, including a description of such Hedging Transaction, the name of the Hedging Counterparty, identification of the Hedging Counterparty or its Affiliates as underwriters or potential underwriters, if applicable, or any change to the plan of distribution) as may reasonably be required to register such Hedging Transaction or sales or transfers of Registrable Class Securities in connection therewith under the Securities Act in a manner consistent with the rights and obligations of the Company hereunder with respect to the registration of Registrable Securities. Any written information provided by the Holders regarding the Hedging Transaction that is included provided to the Company by a Hedging Counterparty for inclusion in a Registration Statementany registration statement, Prospectus prospectus, or Free Writing Prospectus free writing prospectus filed pursuant to this Section 7(e) shall 6.5 shall, for purposes of Section 6.10(b), be deemed to be written information provided by the Holders selling Registrable Securities pursuant to such Registration Statement a Selling Shareholder for purposes of Section 7(b6.10(b).
(ii) All Registration Statements in which Holders may include Registrable Securities under this Agreement shall be subject to the provisions of this Section 7(e), and the registration of Registrable Class Securities thereunder pursuant to this Section 7(e) shall be subject to the provisions of this Agreement applicable to any such Registration Statements; provided, however, that the selection of any Hedging Counterparty shall not be subject to Section 3(g), but the Hedging Counterparty shall be selected by the Holders of a majority of the Registrable Class Securities subject to the Hedging Transaction that are proposed to be included in such Registration Statement.
(iiib) If in connection with a Hedging Transaction, a Hedging Counterparty or any Affiliate thereof is (or may reasonably be considered) an underwriter or selling stockholdershareholder, then it such Hedging Counterparty shall be required to provide customary indemnities to the Company regarding the plan of distribution and like related matters.
(ivc) The Company further agrees to include, under the caption “Plan Notwithstanding any other provision of Distribution” (or the equivalent caption)this Section 6.5, in each Registration Statement, and no event shall Amazon or any related Prospectus (of its Affiliates “loan” any Registrable Securities to the extent such inclusion is permitted under applicable Commission regulations and is consistent with comments received from the Commission during any Commission review “short sellers” of the Registration Statement), language substantially in the form of Schedule 1 hereto and to include in each Prospectus supplement filed in connection with any proposed Hedging Transaction language mutually agreed upon by the Company, the relevant Holders and the Hedging Counterparty describing such Hedging Transaction’s securities.
Appears in 1 contract
Hedging Transactions. Prior to the Effective Time, the Company will use commercially reasonable efforts to cooperate with and assist Parent in terminating the Convertible Note Hedge Options and the Warrants at or as promptly as practicable following the Effective Time. Prior to the Effective Time, the Company will, and will cause its Representatives to, cooperate with and assist Parent in connection with discussions, negotiations or agreements with the counterparties to the Convertible Note Hedge Options and the Warrants with respect to any determination, adjustment, cancellation, termination, exercise, settlement or computation in connection with the Convertible Note Hedge Options or the Warrants, including with respect to any cash amounts or shares of Company Common Stock that may be receivable, issuable, deliverable or payable by the Company pursuant to the Convertible Note Hedge Options or the Warrants; provided that the Company shall not be required to enter into any agreement the effectiveness of which is not conditioned upon the occurrence of the Effective Time. The Company shall also, as promptly as reasonably practicable, provide Parent and its counsel with copies of any notices or other written communications received from the counterparties to, and in respect of, the Convertible Note Hedge Options or the Warrants, and shall give Parent reasonable opportunity to review and comment on any written response to any such notice or other written communication, and shall give good faith consideration to any such comments timely provided by Parent. If requested by Parent, the Company shall use commercially reasonable efforts to engage a hedging advisor in connection with the actions set forth in the immediately preceding sentence, provided that all fees, costs or other liabilities that may be owing to any such hedging advisor that are not contingent upon the occurrence of the Closing or are payable prior to the Closing, shall be at Parent’s sole cost and expense. The Company shall not (i) The Company agrees thatenter into any binding agreements in respect of the Convertible Note Hedge Options or the Warrants, (ii) agree to any amendments, modifications or other changes to the terms of the Convertible Note Hedge Options or the Warrants, or (iii) exercise any right it may have to terminate, or to trigger an early settlement of, any of the Convertible Note Hedge Options or Warrants (other than, for the avoidance of doubt, in connection with an early conversion of any proposed Hedging Transaction, ifCompany Convertible Notes), in each case without the reasonable judgment prior written consent of Holders’ Counsel, it is necessary or desirable to register under the Securities Act such Hedging Transaction or sales or transfers (whether short or long) of Registrable Class Securities in connection therewith, then the Company shall use its reasonable best efforts to take such actions (which may include, among other things, the filing of a post-effective amendment to a Registration Statement to include additional or changed information that is material or is otherwise required to be disclosed, including a description of such Hedging Transaction, the name of the Hedging Counterparty, identification of the Hedging Counterparty or its Affiliates as underwriters or potential underwriters, if applicable, or any change to the plan of distribution) as may reasonably be required to register such Hedging Transaction or sales or transfers of Registrable Class Securities in connection therewith under the Securities Act in a manner consistent with the rights and Parent. The Company’s obligations of the Company hereunder with respect to the registration of Registrable Securities. Any information provided by the Holders regarding the Hedging Transaction that is included in a Registration Statement, Prospectus or Free Writing Prospectus pursuant to this Section 7(e) shall be deemed to be information provided by the Holders selling Registrable Securities pursuant to such Registration Statement for purposes of Section 7(b).
(ii) All Registration Statements in which Holders may include Registrable Securities under this Agreement shall be subject to the provisions of this Section 7(e), and the registration of Registrable Class Securities thereunder pursuant to this Section 7(e6.19(b) shall be subject to the provisions of this Agreement applicable to any such Registration Statements; provided, however, that the selection of any Hedging Counterparty shall not be subject to Section 3(g), but the Hedging Counterparty shall be selected by the Holders of a majority of the Registrable Class Securities subject to the Hedging Transaction that are proposed to be included in such Registration Statement6.9.
(iii) If in connection with a Hedging Transaction, a Hedging Counterparty or any Affiliate thereof is (or may be considered) an underwriter or selling stockholder, then it shall be required to provide customary indemnities to the Company regarding the plan of distribution and like matters.
(iv) The Company further agrees to include, under the caption “Plan of Distribution” (or the equivalent caption), in each Registration Statement, and any related Prospectus (to the extent such inclusion is permitted under applicable Commission regulations and is consistent with comments received from the Commission during any Commission review of the Registration Statement), language substantially in the form of Schedule 1 hereto and to include in each Prospectus supplement filed in connection with any proposed Hedging Transaction language mutually agreed upon by the Company, the relevant Holders and the Hedging Counterparty describing such Hedging Transaction.
Appears in 1 contract
Samples: Merger Agreement (Perficient Inc)
Hedging Transactions. (a) The Borrower will not, nor will the Borrower permit any other Credit Party to, enter into any Hedging Transactions, except (i) The Company agrees that, Hedging Transactions entered into to hedge or mitigate risks to which the Borrower or any other Credit Party has actual exposure (other than in connection with any proposed Hedging Transaction, if, in the reasonable judgment respect of Holders’ Counsel, it is necessary Equity Interests or desirable to register under the Securities Act such Hedging Transaction or sales or transfers (whether short or long) of Registrable Class Securities in connection therewith, then the Company shall use its reasonable best efforts to take such actions (which may include, among other things, the filing of a post-effective amendment to a Registration Statement to include additional or changed information that is material or is otherwise required to be disclosed, including a description of such Hedging Transaction, the name Indebtedness of the Hedging Counterparty, identification of the Hedging Counterparty or its Affiliates as underwriters or potential underwriters, if applicable, Borrower or any change other Credit Party), (ii) Hedging Transactions entered into in order to the plan of distributioneffectively cap, collar or exchange interest rates (from fixed to floating rates, from one floating rate to another floating rate or otherwise) as may reasonably be required to register such Hedging Transaction or sales or transfers of Registrable Class Securities in connection therewith under the Securities Act in a manner consistent with the rights and obligations of the Company hereunder with respect to any Indebtedness or any other interest-bearing liability of the registration Borrower or any other Credit Party, (iii) Hedging Transactions entered into, other than for speculative reasons, in respect of Registrable Securities. Any information provided by the Holders regarding the one or more currencies and (iv) Oil and Gas Hedging Transaction that is included in a Registration Statement, Prospectus or Free Writing Prospectus pursuant to this Section 7(e) shall be deemed to be information provided by the Holders selling Registrable Securities pursuant to such Registration Statement for purposes of Section 7(b)Transactions.
(iib) All Registration Statements The Borrower will not, nor will the Borrower permit any other Credit Party to, enter into any new Oil and Gas Hedging Transactions which would cause the volume of Hydrocarbons with respect to which a settlement payment is calculated under all Oil and Gas Hedging Transactions (including such new transactions) to which the Borrower and/or any other Credit Party is a party as of the date such Oil and Gas Hedging Transaction is entered into to exceed (i)(A) for the calendar year in which Holders may include Registrable Securities under this Agreement shall be subject to such new Oil and Gas Hedging Transaction is entered into (the provisions of this Section 7(e“Initial Measurement Period”), 85% of the aggregate of the Borrower’s and the registration Subsidiaries’ anticipated production from Proved Mineral Interests for each of Registrable Class Securities thereunder pursuant to this Section 7(e) shall be subject to the provisions of this Agreement applicable to any such Registration Statements; provided, however, that the selection of any Hedging Counterparty shall not be subject to Section 3(goil and gas (including natural gas liquids), but calculated separately, (B) for the Hedging Counterparty shall be selected by calendar year immediately following the Holders of a majority end of the Registrable Class Securities subject to Initial Measurement Period (the Hedging Transaction that are proposed to be included in such Registration Statement.
“Second Measurement Period”), 80% of the aggregate of the Borrower’s and the Subsidiaries’ anticipated production from Proved Mineral Interests for each of oil and gas (iiiincluding natural gas liquids), calculated separately, and (C) If in connection with a Hedging Transactionfor the calendar year immediately following the end of the Second Measurement Period (the “Third Measurement Period”), a Hedging Counterparty or any Affiliate thereof is 75% of the aggregate of the Borrower’s and the Subsidiaries’ anticipated production from Proved Mineral Interests for each of oil and gas (or may be considered) an underwriter or selling stockholderincluding natural gas liquids), then it shall be required to provide customary indemnities to the Company regarding the plan of distribution and like matters.
(iv) The Company further agrees to includecalculated separately, under the caption “Plan of Distribution” (or the equivalent caption)plus, in each Registration Statementcase, (ii) an amount not to exceed 100% of associated royalty owners’ oil, gas and/or natural gas liquids produced from the same xxxxx, and which oil, gas and/or natural gas liquids the Borrower has the authority to market and sell, during the applicable measurement period; provided that the Borrower will not, nor will the Borrower permit any related Prospectus other Credit Party to, permit its production from Proved Producing Mineral Interests (to the extent such inclusion is permitted under applicable Commission regulations and is consistent with comments received from the Commission during any Commission review of the Registration Statement), language substantially whether or not included or reflected in the form most recent Reserve Report delivered pursuant hereto) during the then current month to be less than the aggregate amount of Schedule 1 hereto production from Proved Producing Mineral Interests which are subject to Oil and to include in each Prospectus supplement filed in connection with Gas Hedging Transactions during such month; provided further that the Borrower will not, nor will the Borrower permit any proposed other Credit Party to, enter into any Oil and Gas Hedging Transaction language mutually agreed upon (A) except in the ordinary course of business (and not for speculative purposes) and (B) with a counterparty with a rating of its senior, unsecured, long-term indebtedness for borrowed money that is not guaranteed by the Companyany other Person or subject to any other credit enhancement of lower than “BBB-” or “Baa3” by S&P and Xxxxx’x, the relevant Holders and the Hedging Counterparty describing such Hedging Transactionrespectively.
Appears in 1 contract
Hedging Transactions. (i) The Company agrees that, in connection with any proposed Hedging Transaction, if, in the reasonable judgment of Holders’ ' Counsel, it is necessary or desirable to register under the Securities Act such Hedging Transaction Transactions or sales or transfers (whether short or long) of Registrable Class Securities in connection therewith, then the Company shall use its reasonable best efforts to take such actions (which may include, among other things, the filing of a post-effective amendment to a Registration Statement to include additional or changed information that is material or is otherwise required to be disclosed, including including, without limitation, a description of such Hedging Transaction, the name of the Hedging Counterparty, identification of the Hedging Counterparty or its Affiliates as underwriters or potential underwriters, if applicable, or any change to the plan of distribution) as may reasonably be required to register such Hedging Transaction Transactions or sales or transfers of Registrable Class Securities in connection therewith under the Securities Act in a manner consistent with the rights and obligations of the Company hereunder with respect to the registration of Registrable Securities. Any information provided by the Holders regarding the Hedging Transaction that is included in a Registration Statement, Prospectus Statement or Free Writing Prospectus prospectus pursuant to this Section 7(e) shall be deemed to be information provided by the Holders selling Registrable Securities pursuant to such Registration Statement for purposes of Section 7(b).
(ii) All Registration Statements in which Holders may include Registrable Securities under this Agreement shall be subject to the provisions of this Section 7(e), and the registration of Registrable Class Securities thereunder pursuant to this Section 7(e) shall be subject to the provisions of this Agreement applicable to any such Registration Statements; provided, however, that the selection of any Hedging Counterparty shall not be subject to Section 3(g)3(f) hereof, but the Hedging Counterparty shall be selected by the Holders of a majority of the Registrable Class Securities subject to the Hedging Transaction that are proposed to be included in such Registration Statement.
(iii) If in connection with a Hedging Transaction, a Hedging Counterparty or any Affiliate thereof is (or may be considered) an underwriter or selling stockholder, then it shall be required to provide customary indemnities to the Company regarding the plan Plan of distribution Distribution and like matters.
(iv) The Company further agrees to include, under the caption “"Plan of Distribution” " (or the equivalent caption), in each Registration Statement, and any related Prospectus prospectus (to the extent such inclusion is permitted under applicable Commission regulations and is consistent with comments received from the Commission during any Commission review of the Registration Statement), language substantially in the form of Schedule 1 Annex A hereto and to include in each Prospectus prospectus supplement filed in connection with any proposed Hedging Transaction language mutually agreed upon by the Company, the relevant Holders and the Hedging Counterparty describing such Hedging Transaction.
Appears in 1 contract
Hedging Transactions. (a) The provisions of this Agreement relating to the registration, offer, and sale of Registrable Securities shall apply also to (i) The Company agrees thatany transaction which Transfers some or all of the economic risk of ownership of Registrable Securities, including any forward contract, equity swap, put or call, put- or call-equivalent position, collar, margin loan, sale of exchangeable security, or similar transaction (including the registration, offer, and sale under the Securities Act of Registrable Securities pledged to the counterparty to such transaction or of securities of the same class as the underlying Registrable Securities by the counterparty to such transaction in connection with therewith), and that the counterparty to such transaction shall be selected in the sole discretion of the Demand Shareholders and (ii) any proposed derivative transactions in which a broker-dealer, other financial institution, or unaffiliated Person (each, a “Hedging Counterparty”) may sell Registrable Securities covered by any prospectus and the applicable prospectus supplement including short sale transactions using Registrable Securities pledged by a Demand Shareholder or borrowed from the Demand Shareholder or others and Registrable Securities loaned, pledged, or hypothecated to any such party (each, a “Hedging Transaction, if, ”); provided that the Demand Shareholder’s legal counsel has determined in the its reasonable judgment (after good faith consultation with counsel of Holders’ Counsel, the Company) that it is reasonably necessary or desirable to register under the Securities Act such Hedging Transaction or sales or transfers (whether short or long) of Registrable Class Securities in connection therewith, then the Company shall use its reasonable best efforts to take such actions (which may include, among other things, the filing of a post-effective amendment to a Registration Statement to include additional or changed information that is material or is otherwise required to be disclosed, including a description of such Hedging Transaction, the name of the Hedging Counterparty, identification of the Hedging Counterparty or its Affiliates as underwriters or potential underwriters, if applicable, or any change to the plan of distribution) as may reasonably be required to register such Hedging Transaction or sales or transfers of Registrable Class Securities in connection therewith under the Securities Act in a manner consistent with the rights and obligations of the Company hereunder with respect to the registration of Registrable Securities. Any written information provided by the Holders regarding the Hedging Transaction that is included provided to the Company by a Hedging Counterparty for inclusion in a Registration Statementany registration statement, Prospectus prospectus, or Free Writing Prospectus free writing prospectus filed pursuant to this Section 7(e) shall 6.5 shall, for purposes of Section 6.10(b), be deemed to be written information provided by the Holders selling Registrable Securities pursuant to such Registration Statement a Selling Shareholder for purposes of Section 7(b6.10(b).
(ii) All Registration Statements in which Holders may include Registrable Securities under this Agreement shall be subject to the provisions of this Section 7(e), and the registration of Registrable Class Securities thereunder pursuant to this Section 7(e) shall be subject to the provisions of this Agreement applicable to any such Registration Statements; provided, however, that the selection of any Hedging Counterparty shall not be subject to Section 3(g), but the Hedging Counterparty shall be selected by the Holders of a majority of the Registrable Class Securities subject to the Hedging Transaction that are proposed to be included in such Registration Statement.
(iiib) If in connection with a Hedging Transaction, a Hedging Counterparty or any Affiliate thereof is (or may reasonably be considered) an underwriter or selling stockholdershareholder, then it such Hedging Counterparty shall be required to provide customary indemnities to the Company regarding the plan of distribution and like related matters.
(iv) The Company further agrees to include, under the caption “Plan of Distribution” (or the equivalent caption), in each Registration Statement, and any related Prospectus (to the extent such inclusion is permitted under applicable Commission regulations and is consistent with comments received from the Commission during any Commission review of the Registration Statement), language substantially in the form of Schedule 1 hereto and to include in each Prospectus supplement filed in connection with any proposed Hedging Transaction language mutually agreed upon by the Company, the relevant Holders and the Hedging Counterparty describing such Hedging Transaction.
Appears in 1 contract
Hedging Transactions. The Borrower will not, and will not permit any Subsidiary Guarantor to, enter into any Hedging Transaction, other than Hedging Transactions entered into in the ordinary course of business (i) The Company agrees thatto hedge or mitigate risks to which the Borrower or any Subsidiary Guarantor is exposed in the conduct of its business or the management of its liabilities, in connection or (ii) with any proposed counterparty who is or is anticipated to become, at the time that the Hedging Transaction is entered into, a borrower from the Borrower or any Subsidiary Guarantor or the issuer of a debt or equity interest to the Borrower or any Subsidiary Guarantor, which Hedging Transaction is entered into to hedge or mitigate risks to which such counterparty and its affiliates are exposed in the conduct of their businesses or the management of their liabilities, or (iii) to hedge or mitigate risks to which the Borrower or any Subsidiary Guarantor is exposed under Hedging Transactions described in the preceding clause (ii) or to effect an offset or unwind of any other Hedging Transaction, if; provided that the Borrower or any Subsidiary Guarantor shall act in a reasonable and prudent manner to achieve, in the reasonable judgment of Holders’ Counselaggregate, it is necessary or desirable to register substantially offsetting Hedging Transactions under the Securities Act such Hedging Transaction or sales or transfers clause (whether short or longiii) of Registrable Class Securities in connection therewith, then the Company shall use its reasonable best efforts to take such actions (which may include, among other things, the filing of a post-effective amendment to a Registration Statement to include additional or changed information that is material or is otherwise required to be disclosed, including a description of such Hedging Transaction, the name of the Hedging Counterparty, identification of the Hedging Counterparty or its Affiliates as underwriters or potential underwriters, if applicable, or any change to the plan of distribution) as may reasonably be required to register such Hedging Transaction or sales or transfers of Registrable Class Securities in connection therewith under the Securities Act in a manner consistent with the rights and obligations of the Company hereunder with respect to the registration of Registrable Securities. Any information provided by the Holders regarding Net Xxxx to Market Exposure under the Hedging Transactions that are from time to time outstanding under clause (ii). Solely for the avoidance of doubt, the Borrower acknowledges that a Hedging Transaction that is included in entered into for speculative purposes or of a Registration Statement, Prospectus or Free Writing Prospectus pursuant to this Section 7(e) speculative nature (which shall be deemed to be information provided include any Hedging Transaction under which the Borrower or any Subsidiary Guarantor is or may become obliged to make any payment (i) in connection with the purchase by the Holders selling Registrable Securities pursuant to such Registration Statement for purposes any third party of Section 7(b).
any common stock or any Indebtedness or (ii) All Registration Statements as a result of changes in which Holders may include Registrable Securities under this Agreement shall be subject to the provisions of this Section 7(e), and the registration of Registrable Class Securities thereunder pursuant to this Section 7(e) shall be subject to the provisions of this Agreement applicable to any such Registration Statements; provided, however, that the selection market value of any Hedging Counterparty shall common stock or any Indebtedness) is not be subject to Section 3(g), but the Hedging Counterparty shall be selected by the Holders of a majority of the Registrable Class Securities subject to the Hedging Transaction that are proposed to be included in such Registration Statement.
(iii) If in connection with a Hedging Transaction, a Hedging Counterparty or any Affiliate thereof is (or may be considered) an underwriter or selling stockholder, then it shall be required to provide customary indemnities to the Company regarding the plan of distribution and like matters.
(iv) The Company further agrees to include, under the caption “Plan of Distribution” (or the equivalent caption), in each Registration Statement, and any related Prospectus (to the extent such inclusion is permitted under applicable Commission regulations and is consistent with comments received from the Commission during any Commission review of the Registration Statement), language substantially entered into in the form ordinary course of Schedule 1 hereto and business to include in each Prospectus supplement filed in connection with any proposed Hedging Transaction language mutually agreed upon by the Company, the relevant Holders and the Hedging Counterparty describing such Hedging Transactionhedge or mitigate risks.
Appears in 1 contract
Samples: Revolving Credit Agreement (NGP Capital Resources Co)
Hedging Transactions. (a) Without the prior written approval of Administrative Agent, no Credit Party shall enter into or permit to exist any Hedging Transaction, other than:
(i) The Company agrees that, in connection with any proposed Acceptable Commodity Hedging Transaction, if, Transactions that are standard hedging arrangements entered into in the reasonable judgment ordinary course of Holders’ Counsel, business for the principal purpose of protecting against fluctuations in commodity prices or commodity basis risk (as applicable) and not for the purpose of speculation (it is necessary or desirable to register under the Securities Act such being acknowledged and agreed that Acceptable Commodity Hedging Transaction or sales or transfers (whether short or long) of Registrable Class Securities in connection therewith, then the Company shall use its reasonable best efforts to take such actions (which may include, among other things, the filing of a post-effective amendment to a Registration Statement to include additional or changed information Transactions that is material or is otherwise required to be disclosed, including a description of such Hedging Transaction, the name of the Hedging Counterparty, identification of the Hedging Counterparty or its Affiliates as underwriters or potential underwriters, if applicable, or any change to the plan of distribution) as may reasonably be required to register such Hedging Transaction or sales or transfers of Registrable Class Securities in connection therewith under the Securities Act in a manner consistent comply with the rights and obligations of the Company hereunder with respect to the registration of Registrable Securities. Any information provided by the Holders regarding the Hedging Transaction that is included in a Registration Statement, Prospectus or Free Writing Prospectus pursuant to this Section 7(e7.15(a) shall be deemed to be information provided by standard hedging arrangements entered into in the Holders selling Registrable Securities pursuant ordinary course of business for the principal purpose of protecting against fluctuations in commodity prices or commodity basis risk); or
(ii) Rate Management Transactions entered into in the ordinary course of business with one or more financial institutions for the principal purpose of protecting against fluctuations in interest rates with respect to indebtedness incurred and not for the purpose of speculation.
(b) Without the prior written approval of Administrative Agent, no Credit Party enter into any Commodity Hedging Transaction unless, at the time such Commodity Hedging Transaction is entered into the following requirements are satisfied with respect to such Registration Statement Commodity Hedging Transaction:
(i) the quantity of Hydrocarbons owned by such Credit Party subject to such Commodity Hedging Transaction, when aggregated with all other Commodity Hedging Transactions to which the Credit Parties are a party then in effect, is equal to or less than, for purposes any Hydrocarbon, 85% of Section 7(b)the monthly Projected Production of such Hydrocarbon for any month that is subject to such Commodity Hedging Transaction.
(ii) All Registration Statements No Credit Party shall have any obligation under such Commodity Hedging Transaction in which Holders may include Registrable Securities under respect of any delivery, pricing, calculation or similar period that commences more than 60 months after the date such Commodity Hedging Transaction is executed.
(c) No Credit Party shall cause or permit any Hedging Transaction now existing or hereafter entered into by it to be amended, modified, terminated, or negated (including through its entry into one or more new Hedging Transactions with the opposing effect or through liquidation) in any manner that (i) is not the result of an arms’ length negotiation on market terms (determined at the time of entry) or (ii) would cause Borrower to be out of compliance with any provision of this Agreement shall be after giving effect thereto, or (iii) is materially adverse to the Lenders (x) without the prior written consent of Administrative Agent or (y) subject to the provisions of following sentence, unless such Hedging Transaction is amended, modified, terminated or negated in accordance with Section 7.15(b). If at any time a Credit Party is required to unwind a Hedging Transaction in accordance with Section 7.15(b) and cannot do so while remaining in compliance with this Section 7(eclause (c), and the registration of Registrable Class Securities thereunder pursuant such Credit Party may only unwind such Hedging Transaction after Borrower gives notice thereof to this Section 7(eAdministrative Agent.
(d) No Credit Party shall be subject to the provisions of this Agreement applicable to any such Registration Statements; provided, however, that the selection of enter into any Hedging Counterparty shall not Transaction, or cause or permit any Hedging Transaction now existing or hereafter entered into by it to be subject amended or modified, in each case without the prior written consent of Administrative Agent, unless such new, amended or modified Hedging Transaction, as applicable, relates to Section 3(g), but the Hedging Counterparty shall be selected by the Holders or is entered in contemplation of or to facilitate a majority of the Registrable Class Securities subject to the Hedging Transaction that are proposed to be included in such Registration Statementcomplies with this Section 8.18.
(iiie) If in connection with a In no event shall any Hedging TransactionTransaction contain any requirement, a Hedging Counterparty agreement or covenant for any Affiliate thereof is Credit Party to post collateral, credit support (or may be considered) an underwriter or selling stockholder, then it shall be required to provide customary indemnities to the Company regarding the plan of distribution and like matters.
(iv) The Company further agrees to include, under the caption “Plan of Distribution” (or the equivalent caption), in each Registration Statement, and any related Prospectus (to the extent such inclusion is permitted under applicable Commission regulations and is consistent with comments received from the Commission during any Commission review of the Registration Statement), language substantially including in the form of Schedule 1 hereto and letters of credit) or margin to include in each Prospectus supplement filed in connection with any proposed secure their obligations under such Hedging Transaction language mutually agreed or to cover market exposures (other than (x) Collateral for the benefit of the Lender Hedge Counterparties pursuant to the Loan Documents or (y) pursuant to the terms of the X. Xxxx ISDA).
(f) No Credit Party shall enter into any Hedging Transaction involving an Advance Payment Contract, a prepayment, an off-market price (determined at the time of entry) or any other pricing arrangement resulting in material credit exposure to either party thereto upon by the Company, the relevant Holders and the Hedging Counterparty describing execution of such Hedging Transaction. For purposes of the foregoing, a Credit Party’s receipt of an on-market premium pursuant to an option that is otherwise permitted under this Agreement will not be considered a prepayment, but the payment or receipt of any other premium will be considered a prepayment.
(g) No Credit Party shall enter into Hedging Transaction where any payments owed by such Credit Party in respect of calculation periods that would occur after early termination of such Hedging Transaction could be netted against any payments owed to any Credit Party for physical Hydrocarbons delivered prior to termination.
Appears in 1 contract
Hedging Transactions. Each Lender agrees that as long as it or any of its Affiliates holds any Securities it shall not, and such Lender shall cause it Affiliates not to, hold any short sale position or any hedging position with respect to any Company Securities in excess of $25,000; provided that, notwithstanding the foregoing, any such Lender or such Affiliates may enter into any such short position or hedging position (i) The Company agrees that, in connection with any proposed Hedging Transaction, if, in the reasonable judgment of Holders’ Counsel, it is necessary or desirable to register under the Securities Act such Hedging Transaction or sales or transfers (whether short or long) of Registrable Class Securities in connection therewith, then the Company shall use its reasonable best efforts to take such actions (which may include, among other things, the filing of a post-effective amendment to a Registration Statement to include additional or changed information that is material or is otherwise required to be disclosed, including a description of such Hedging Transaction, the name of the Hedging Counterparty, identification of the Hedging Counterparty or its Affiliates as underwriters or potential underwriters, if applicable, or any change prior to the plan of distribution) Effective Date, at any time during any period that that the bid price for the Common Stock as may reasonably be required to register such Hedging Transaction or sales or transfers of Registrable Class Securities in connection therewith under the Securities Act in a manner consistent with the rights and obligations of the Company hereunder with respect to the registration of Registrable Securities. Any information provided reported by the Holders regarding the Hedging Transaction that Reporting Service is included in a Registration Statement, Prospectus equal to or Free Writing Prospectus greater than $0.25 (and such Lender or such Affiliate shall be entitled to hold such short position or hedging position entered into pursuant to this Section 7(eclause (i) shall be deemed even if the bid price for the Common Stock declines to be information provided by the Holders selling Registrable Securities pursuant to such Registration Statement for purposes of Section 7(b).
less than $0.25) and (ii) All Registration Statements in which Holders may include Registrable Securities under this Agreement shall be subject to the provisions of this Section 7(e), and the registration of Registrable Class Securities thereunder pursuant to this Section 7(e) shall be subject to the provisions of this Agreement applicable to any such Registration Statements; provided, however, that the selection of any Hedging Counterparty shall not be subject to Section 3(g), but the Hedging Counterparty shall be selected by the Holders of a majority of the Registrable Class Securities subject to the Hedging Transaction that are proposed to be included in such Registration Statement.
(iii) If in connection with a Hedging Transaction, a Hedging Counterparty conversion under the Debenture or any Affiliate thereof is (or may be considered) an underwriter or selling stockholder, then exercise of the Warrants. Each Lender agrees that it shall not transfer any Securities unless the transferee thereof explicitly agrees in writing to be required to provide customary indemnities to bound by the Company regarding the plan of distribution and like matters.
(iv) The Company further agrees to includeterms hereof, under the caption “Plan of Distribution” (or the equivalent caption), in each Registration Statement, and any related Prospectus (to the extent such inclusion is permitted under applicable Commission regulations and is consistent with comments received from the Commission during any Commission review of the Registration Statement), language substantially in the form of Schedule 1 hereto and to include in each Prospectus supplement filed except in connection with transfers of Shares that are not Registrable Securities. The Company agrees that unless and until (i) the Company has affirmatively demonstrated by the use of specific clear and convincing evidence that a Lender has traded in securities of the Company in violation of applicable federal securities laws and (ii) there has been issued against such Lender a final non-appealable decision from a court of competent jurisdiction to the effect that such Lender has violated applicable federal securities laws with respect to its trading of the Company's securities, such Lender shall be assumed to be in compliance with such laws and the Company shall remain obligated to fulfill all of its obligations under each of the Transaction Agreements; provided, further, that the Company shall under no circumstances be entitled to request or demand that a Lender affirmatively demonstrate that it has not engaged in any proposed Hedging such violations as a condition to the Company's fulfillment of its obligations under any of the Transaction language mutually agreed upon by Agreements and shall not assert, whether as an affirmative claim or a defense to any claim made against the Company, that such Lender's failure to demonstrate such absence of such violations (including, but not limited to, its failure to provide any trading or other records, it being specifically agreed that the relevant Holders and Company, directly or indirectly, will request such Lender or any of its agents, advisors, brokers or representatives to provide such records in any forum) serves either as a defense to any breach of the Hedging Counterparty describing Company's obligations under any of the Transaction Agreements or otherwise reflects adversely in any manner on the legality of any action taken by such Hedging TransactionLender.
Appears in 1 contract
Samples: Securities Purchase Agreement (Advanced Technology Industries Inc)
Hedging Transactions. (a) If the Authority shall enter into a Qualified Swap Agreement with a Swap Provider requiring the Authority to pay a fixed interest rate on a notional amount, or requiring the Authority to pay a variable interest rate on a notional amount, and the Authority has made a determination that such Qualified Swap Agreement was entered into for the purpose of providing substitute interest payments for Bonds of a particular maturity or maturities in a principal amount equal to the notional amount of the Qualified Swap Agreement and so long as the Swap Provider under such Qualified Swap Agreement is not in default under such Qualified Swap Agreement:
(i) The Company agrees that, in connection with any proposed Hedging Transaction, if, in the reasonable judgment of Holders’ Counsel, it is necessary or desirable to register under the Securities Act such Hedging Transaction or sales or transfers (whether short or long) of Registrable Class Securities in connection therewith, then the Company shall use its reasonable best efforts to take such actions (which may include, among other things, the filing of a post-effective amendment to a Registration Statement to include additional or changed information that is material or is otherwise required to be disclosed, including a description of such Hedging Transaction, the name of the Hedging Counterparty, identification of the Hedging Counterparty or its Affiliates as underwriters or potential underwriters, if applicable, or any change to the plan of distribution) as may reasonably be required to register such Hedging Transaction or sales or transfers of Registrable Class Securities in connection therewith under the Securities Act in a manner consistent with the rights and obligations of the Company hereunder with respect to the registration of Registrable Securities. Any information provided by the Holders regarding the Hedging Transaction that is included in a Registration Statement, Prospectus or Free Writing Prospectus pursuant to this Section 7(e) shall be deemed to be information provided by the Holders selling Registrable Securities pursuant to such Registration Statement for purposes of Section 7(b).any calculation of Aggregate Debt Service, the interest rate on the Bonds of such maturity or maturities shall be determined as if such Bonds bore interest at the fixed interest rate or the variable interest rate, as the case may be, payable by the Authority under such Qualified Swap Agreement;
(ii) All Registration Statements in which Holders may include Registrable Securities under this Agreement shall be subject to the provisions of this Section 7(e), and the registration of Registrable Class Securities thereunder pursuant to this Section 7(e) shall be subject to the provisions of this Agreement applicable to any such Registration Statements; providednet payments (excluding, however, that termination fees, expenses and other amounts payable pursuant to a Qualified Swap Agreement not specifically made on the selection basis of any Hedging Counterparty shall not interest rates) required to be subject made by the Authority to Section 3(g), but the Hedging Counterparty Swap Provider pursuant to such Qualified Swap Agreement from Revenues shall be selected by made on a parity with payments due on other Bonds or Subordinate Bonds, as applicable, solely from amounts on deposit to the Holders of a majority credit of the Registrable Class Securities subject to Debt Service Fund, the Hedging Transaction that are proposed to be included Rolling Coverage Fund, the Supplemental Reserve Fund, the Debt Service Reserve Fund, the Subordinate Debt Service Fund, or a Subordinate Reserve Fund, if any, as applicable, in such Registration Statement.the order described in Section 6.03;
(iii) If in connection with a Hedging Transaction, a Hedging Counterparty or any Affiliate thereof is (net payments received by the Authority from the Swap Provider pursuant to such Qualified Swap Agreement shall be applied and may or may not be considered) an underwriter or selling stockholder, then it shall be required to provide customary indemnities to treated as Revenues as directed by the Company regarding the plan of distribution and like matters.Authority; and
(iv) The Company further agrees termination fees, expenses and other amounts payable pursuant to include, under a Qualified Swap Agreement not specifically made on the caption “Plan basis of Distribution” (or interest rates shall be paid from amounts on deposit in the equivalent caption), in each Registration StatementCFC Stabilization Fund, and shall not be on a parity with the Bonds.
(b) If the Authority shall enter into a swap agreement of the type generally described in subsection (a) of this Section 3.06 that does not satisfy the requirements for qualification as a Qualified Swap Agreement as a result of its failure to make the determination described therein or otherwise, then:
(i) the interest rate adjustment or assumptions referred to in paragraph (i) of said subsection (a) shall not be made;
(ii) any related Prospectus (net payments required to be made by the Authority to the extent Swap Provider pursuant to such inclusion is permitted under applicable Commission regulations and is consistent with comments swap agreement from Revenues shall be made only from amounts available within the CFC Stabilization Fund after the payment of all other Bonds; and
(iii) any net payments received by the Authority from the Commission during any Commission review Swap Provider pursuant to such swap agreement may be treated as Revenues at the option of the Registration Statement), language substantially in the form of Schedule 1 hereto Authority and to include in each Prospectus supplement filed in connection with any proposed Hedging Transaction language mutually agreed upon applied as directed by the CompanyAuthority.
(c) The Trustee shall have no responsibility for the Authority's obligations under this Section 3.07 or with respect to any swap agreement entered into by the Authority pursuant to paragraphs (a) or (b) above, other than to receive payments from and make payments to a Swap Provider in accordance with the relevant Holders written instructions of the Authority. The Authority will notify the Trustee upon entering into any Swap under this Section, and shall provide written instructions to the Hedging Counterparty describing such Hedging TransactionTrustee with respect to its administration.
Appears in 1 contract
Samples: Trust Agreement
